The recent crash of salmon, steelhead, and trout populations has
drawn attention to the altered state of Northwest rivers. Columbia
Basin salmon runs once numbered perhaps sixteen million fish; today,
they hang by a thread.(1) The issue of how to save the salmon has become
exceedingly large, complex, and contentious, possibly more so than any
other issue in the region. These ancient species are extremely important
to the economy, ecology, and culture of the Northwest, and their decline
raises fundamental questions about the problems confronting the
region's rivers and the plans to restore these rivers to health.
While hydropower dams may be the biggest single problem on the Columbia
and Snake Rivers,(2) dams are only part of the trouble with rivers in
the Northwest. Many fish stocks are in serious peril even without the
harmful effects of large dams. These stocks include resident fish such
as the bull trout (which allegedly deserves an Endangered Species Act
listing)(3) as well as salmon runs on coastal streams.(4) The region
must look beyond dams if it is to restore its fish populations and
rivers.

There is increasingly wide recognition of the need to look
comprehensively at the problems facing rivers, from excessive water
temperatures to nonpoint source pollution to dewatering. Much recent
attention has been directed to the concept of the
"watershed"--the entire basin drained by a particular river or
stream--and to the need to address the whole range of factors affecting
watershed health. Today, people ranging from federal agency heads to
family farmers are discussing watershed planning, watershed restoration,
and watershed management.

This focus on watersheds fits within the broader context of
"ecosystem management," an approach to natural resources
management that considers a broad range of ecological as well as
societal factors.(5) In other words, the watershed/ecosystem approach
promises comprehensive resource management that takes account of both
natural and human values--a truly holistic stew.

Conceptually, comprehensive- resource management at the watershed
or ecosystem level makes a good deal of sense. In the Northwest,
however, this concept is confronted with a very serious and difficult
problem: state water law and the prior appropriation doctrine.

Water is the key ingredient in healthy, productive, functioning
ecosystems. Especially in the arid and semi-arid country east of the
Cascades, water is life itself. Water nourishes all manner of organisms
that inhabit rivers and riparian corridors. Water is also biologically
and economically crucial to human survival. Any attempt to implement
truly comprehensive "ecosystem management" must include
management of water to meet both human and environmental needs.

In the Northwest, however, water is not managed that way. Instead,
water is governed by a system of appropriative rights that allows
private users to take all the water out of a stream to meet their needs,
leaving nothing for the needs of other people or the environment. Thus,
state water law does not fit well within a comprehensive approach to
managing resources that considers the interests of all people and all
species in maintaining sustainable ecosystems. Rather, northwestern
states manage water under the simple directive of prior appropriation:
"first in time, first in right."(6)

For this reason, many Northwest streams are completely dried up at
certain times of year; many others are drastically lowered, with major
impacts on water temperature, pollutant concentrations, the quantity and
quality of aquatic habitat, and other values. Most of the water diverted
and consumed goes to irrigated agriculture.(7) Lacking adequate water,
many Northwest rivers cannot support the fish, birds, plants, and other
creatures that depend on them. A watershed is simply not healthy if all
the water is removed from its rivers. The four major Columbia Basin
states (Idaho, Montana, Oregon, and Washington) have taken steps to
protect some of the remaining flows in certain rivers. For most reaches
of most rivers, however, instream flow protection is nonexistent or
inadequate to protect aquatic life. Moreover, neither streamflow
protection measures nor state water planning pro grams are well
connected with many "watershed management" activities of
government agencies and local groups, although some notable exceptions
exist. For both legal and political reasons, watershed management
efforts generally concentrate more on land use and riparian improvements
than on water quantity. However, such efforts cannot be fully
comprehensive or successful unless they effectively address the need for
instream flows.

Part II of this Article examines existing watershed management
activities in the Northwest, sampling watershed efforts at the federal,
regional, state, local, and tribal level. This Part also discusses
possible reasons for the popularity of the watershed approach. Part III
explores the role of instream flow protection in Northwest watershed
management. Instream flows are important to watershed health, as
recognized by many watershed management plans. State laws provide for
instream flow protection and water planning at the river basin level,
but these measures often are not connected with watershed management
efforts. Streamflow protection, however, can be integrated into the
watershed approach and may be crucial to the success of comprehensive
watershed management. Part IV concludes with some cautionary notes about
the future of streamflow protection and watershed management in the
Northwest.

II. WATERSHED MANAGEMENT: THE POPULAR CHOICE

Throughout the Northwest, government agencies at every level, as
well as many private citizens, are beginning to advocate a watershed
approach to natural resource management. The following section
identifies some of the better-known "watershed management"
efforts in the region and discusses some of the reasons why the
watershed approach has be come popular.

A. Watershed Management Efforts by Various Agencies

"Watershed management" comes in all shapes and sizes,
from multi-agency efforts to manage all federal forest lands west of the
Cascades to volunteer watershed councils that concentrate on one small
river basin. The following pages sample such activities in the
Northwest.

1. Federal Efforts

a. U.S. Forest Service/U.S. Bureau of Land Management (BLM)

Federal natural resource agencies in the Northwest have embarked on
some ambitious and high-profile attempts at ecosystem management. The
key agencies, the U.S. Forest Service and BLM, manage much of the land
in the Columbia River Basin. What ecosystem management actually means to
these agencies is somewhat difficult to comprehend.(8) Whatever the
concept may mean, the federal land management agencies seem committed to
it, as the theme of ecosystem management runs strongly through the
Eastside Project and its interim PACFISH strategy to protect anadromous
fish habitat on public lands east of the Cascades,(9) as well as the
Clinton Forest Plan for managing federal lands west of the Cascades.(10)

PACFISH is essentially a watershed management program for federal
lands that provides habitat for Pacific anadromous fish. The program
sets riparian goals, as well as riparian management objectives,
standards, and guidelines. PACFISH also identifies key riparian
management areas and watersheds, and calls for watershed analysis and
restoration.(11) Because it applies only to federal lands, however, even
PACFISH stops short of truly comprehensive watershed management.

Although the Clinton Forest Plan looks broadly at a huge geographic
area extending from the Canadian border to San Francisco Bay,(12) it
emphasizes the protection of land within certain key watersheds.(13)
These key watersheds were selected either for contributing to anadromous
salmonid and bull trout conservation or because they are sources of high
quality water.(14) The Forest Plan aims to protect these areas through
actions based on watershed analysis--"a systematic procedure for
charaCterizing watershed and ecological processes to meet specific
management and social objectives."(15)

b. National Marine Fisheries Service (NMFS)

NMFS released its Proposed Recovery Plan for the endangered Snake
River salmon in March 1995.(16) Like the Forest Plan, the Proposed
Recovery Plan aims to restore the health of an entire ecosystem, rather
than focus on particular endangered species:

The goal of the Proposed Recovery Plan is to restore the health
of the

Columbia and Snake River ecosystem and to recover listed Snake
River salmon

stocks. Many of the recommended actions will directly benefit other
species

such as other salmon stocks, sturgeon, and bull trout.
Implementation of the

Proposed Recovery Plan should also conserve biodiversity, a factor
that is

essential to ecosystem integrity and stability.(17)

The Proposed Recovery Plan is wide-ranging, addressing the
tributary, mainstem, and estuarine ecosystems; harvest management; and
artificial propagation.(18) In evaluating the problems of the tributary
ecosystem, NMFS recognized that many factors have played a role in the
decline of the Snake River salmon: "Land and water management
actions, including water withdrawals, unscreened water diversions,
stream channelization, road construction, timber harvest, livestock
grazing, mining, and outdoor recreation have degraded important salmon
spawning and rearing habitats."(19) The Proposed Recovery
Plan's prescription for measures to address these problems is
correspondingly comprehensive.(20)

To address problems of salmon habitat in Columbia-Snake
tributaries, NMFS concluded that "[a]n ecosystem-based approach
that considers en tire watersheds and river subbasins is needed. Such an
approach will en sure that all the physical, biological, and chemical
processes and conditions that contribute to the development of
productive salmon habitat are maintained."(21) The Proposed
Recovery Plan stressed that management planning is needed at both the
ecosystem (Columbia Basin) scale and the watershed or sub-basin scale,
and that ecosystem and watershed planning must be integrated.(22)

The Proposed Recovery Plan recognized ongoing watershed planning
efforts in several river basins and noted that they "provide useful
templates for other watersheds."(23) The basins identified are the
Grande Ronde, Asotin Creek, Lemhi, Upper Salmon, and Tucannon.(24) The
plan also cited the joint salmon recovery effort of Wallowa County and
the Nez Perce Tribe as "an example of a productive grass-roots
process."(25)

2. Regional Efforts (Northwest Power Planning Council (NPPC))

In December 1994, NPPC(26) issued its revised Fish and Wildlife
Program for the Columbia Basin.(27) Like the NMFS Proposed Recovery
Plan, the Fish and Wildlife Program analyzed the causes of the regional
salmon crisis and recommended corrective measures. And like NMFS, the
Council attempted to approach salmon recovery on an ecosystem basis.(28)

The Fish and Wildlife Program's prescription for salmon
recovery addresses dam and river operations, harvest, and hatcheries, as
well as habitat. Although the Fish and Wildlife Program is regional in
scope, its approach to habitat restoration begins with "a
`subregional' process that brings relevant interests together to
address the needs of weak fish populations in particular
watersheds."(29) Here again, the ecosystem management strategy
relies heavily on involvement at the local watershed level.

In fact, the Council's approach to habitat protection is based
largely on voluntary and cooperative watershed,planning efforts. The
Fish and Wildlife Program sets forth "habitat objectives"
applicable to all watersheds(30) but notes that these objectives are
addressed principally to public lands within watersheds.(31) However,
the Fish and Wildlife Program also recognizes the necessity of habitat
conservation efforts on private lands and calls for public and private
parties to voluntarily join together in developing and implementing
measures to restore fish habitat.(32) The Council also specified that it
expects progress toward habitat objectives to be achieved through
watershed assessment, watershed management, collaboration, and locally
adopted watershed plans.(33)

The Council actually went a step further, making cooperative,
watershed-based habitat protection efforts a specific element of the
Program. The Fish and Wildlife Program calls for state and federal
agencies, along with the Bonneville Power Administration, to support
local watershed efforts.(34) It also recommends that a model watershed
project be implemented in each of the four major Columbia Basin states,
based on the Grande Ronde, Upper Salmon and Lemhi Model Watershed, which
had already been established under the Program.(35)

3. Oregon's Watershed Programs and Other State Initiatives

Oregon has the oldest and most extensive statutory program relating
to watersheds of the four major Columbia Basin states. Oregon
established the Watershed Enhancement Program in 1987,(36) and in recent
years, the state's efforts to restore and protect watersheds have
evolved and expanded.

The Watershed Enhancement Program is administered by the
Governor's Watershed Enhancement Board (GWEB), an eleven-member
panel comprising the heads of five state natural resource commissions
and boards and six state and federal officials.(37) The Watershed
Enhancement Program helps promote the state's goal to
"[e]nhance Oregon's waters through the management of riparian
and associated upland areas of watersheds in order to improve water
quality and quantity for all beneficial purposes."(38) By 1995,
GWEB had awarded nearly $2.3 million in grants for education and
demonstration projects involving vegetation planting, fe(nc)ing, and
other watershed restoration measures.(39)

Oregon's second program, the Watershed Health Program, was
established in 1993 by House Bill 2215.(40) This Bill directed the
Strategic Water Management Group(41) (SWMG), a state interagency
council, to initiate a watershed management program based on a report
that had already been issued by a public-private working group.(42) The
report recommended a wide variety of measures whereby the state could
restore and protect watershed health.(43)

House Bill 2215 also encouraged the establishment of voluntary
local watershed councils as described in the working group report.(44)
The report envisioned watershed councils that would "represent a
balance of interested and affected persons within the watershed"
and facilitate citizen involvement in developing and implementing a
watershed program.(45) The report identified seven functions of these
local watershed councils; these functions related more to
communication, cooperation, conflict resolution, and public involvement
than to actual resource management.(46) House Bill 2215 authorized SWMG
to work cooperatively with any local watershed council, but provided
that requests for state assistance "shall be evaluated on the basis
of whether the requesting organization reflects the interests of the
affected watershed and the potential to protect and enhance the quality
of the watershed in question."(47) As of April 1995, no fewer than
thirty-six local watershed councils had formed in Oregon.(48) Some of
these councils were just getting organized, while others had produced
plans and started to implement them.(49)

The 1995 Oregon legislature passed a law that gave GWEB control
over the Watershed Health Program.(50) Because of the law, the Watershed
Health Program has simply become a state program to support local
watershed councils. The additional measures contemplated by House Bill
2215, most of which had not been implemented, were jettisoned from the
law. The 1995 law provided some general guidance on the makeup of local
watershed councils,(51) the plans to be developed by these councils,(52)
and state priorities in promoting watershed health.(53)It also revised
the Watershed Enhancement Program to be more favorable to watershed
councils.(54) Thus, Oregon's watershed programs have been unified
under GWEB,(55) whose main role will be funding specific projects
identified by local councils.

The 1993 legislature appropriated $10.2 million to fund the
Watershed Health Program for two years, the bulk of which was to be
spent for the South Coast/Rogue and the Grande Ronde Basins.(56) As of
early 1995, over one hundred individual projects in these basins had
been completed or approved by SWMG for Watershed Health Program
funding.(57) The 1995 legislature allocated approximately $2.7 million
in lottery funds to GWEB.(58)

The Washington Legislature passed a law in 1994 to establish a
watershed planning program, somewhat similar to Oregon's, based on
state agency coordination and project funding assistance.(59) The
statute made no changes in substantive law but established a Watershed
Coordinating Council comprising representatives of ten state natural
resource agencies. The Council was to coordinate watershed planning
actions among state agencies, as well as with federal, tribal, and local
governments.(61) Both the statute and a later executive order directed
the Council to prepare a wide-ranging report on watershed planning and
restoration matters.(62) In addition, the legislature appropriated $10
million for watershed restoration projects to be selected by state
agencies.(63)

The other two Columbia Basin states have not gone so far as to
establish a statewide watershed management framework.(64) (All four
states do authorize water resource planning on a watershed basis, but
most of these efforts do not involve comprehensive watershed
management.)(65) Both Idaho and Montana, however, have legislatively
approved a watershed planning/management approach in particular river
basins: the Henry's Fork in Idaho(66) and the Upper Clark Fork in
Montana.(67) In both cases, however, the legislatures essentially
approved councils that had already formed within these basins.(68)

4. Local Efforts

Although government agencies at every level are now espousing
watershed management principles, much of the activity in forming
watershed councils and adopting watershed plans is coming from the local
level--from within the river basins themselves. Many such efforts have
been undertaken in the Northwest, each with its own story, and this
Article merely samples them. The following pages identify one locally
based watershed protection initiative in each of the four major Columbia
Basin states and briefly explain their background, membership, and
mission.

a. Idaho--The Henry's Fork Basin

The Henry's Fork of the Snake River drains a large area of
eastern Idaho and a portion of northwest Wyoming.(69) The Henry's
Fork is a world famous trout stream; recreation and tourism are
important to the Basin.(70) Over 320,000 acres of cropland are irrigated
from surface and ground water sources within the Basin.(71) The timber
industry is also economically important to the area.(72)

The Henry's Fork Basin has long been the site of disputes
between instream and out-of-stream water interests. The watershed
council was initiated when a local environmental group, the Henry's
Fork Foundation, approached the Fremont-Madison Irrigation District and
asked the irrigators to support a local watershed council.(73) The
district not only agreed to participate in the council but also agreed
to serve with the Henry's Fork Foundation as its
co-facilitators.(74) These groups formed the core of the council, which
was formally recognized by the Idaho Legislature in 1994.(75)

The Henry's Fork Watershed Council chose to be very inclusive
in its membership:

The Council shall be comprised of citizens, scientists and agency

representatives who reside, recreate, make a living and/or have
legal

responsibilities in the Basin, thus ensuring a more collaborative
approach to

resource decision making. The Council shall not be limited in the
number of

participants, with members organized into the following three
component groups:

(a) Citizens Advisory Group--Members of the public with
commodity,

conservation and/or community development interests ....

(b) Technical Team--The team shall be composed of scientists and
technicians

from government, academia and the private sector ....

(c) Agency Roundtable--The Roundtable shall have representatives
of all local,

state and federal entities with rights or responsibilities in the
Basin,

including the Shoshone-Bannock Tribes.(76)

The Council explained its approach as follows;

As interests in the basin have diversified, the Henry's Fork
has sustained

instream flow needs for fisheries and recreation. These issues are
the focal

points of the Henry's Fork Basin Plan, passed by the 1993
Idaho

Legislature.... In order to implement the recommendations and
achieve

long-term goals in the basin, an innovative, consensus-building
process is

needed which includes all resources and people in the watershed.

. . .

. . . Citizens and agencies are beginning to recognize the
importance of

working together, as a rural community, to resolve the ecological
problems in

the watershed and to work towards a sustainable future for all
concerned.(77)

The council sees itself not simply as a planning body but as the
implementer of management plans for the Henry's Fork Watershed.(78)
Perhaps the most significant of the plans is the Comprehensive State
Water Plan for the Henry's Fork Basin, approved by the Idaho Water
Resources Board in 1992 and the Idaho State Legislature in 1993.(79) The
council's support could advance several of the recommendations and
goals of the Henry's Fork Plan, such as improved water conservation
and increased screening of irrigation diversions.(80)

b. Montana--The Upper Clark Fork Basin

Arising in western Montana and flowing northwesterly into
Idaho's Pend Oreille Lake, the Clark Fork River has been called
"Montana's largest and perhaps most abused river."(81)
The Clark Fork Basin is extremely scenic, and the mainstem Clark Fork is
potentially an outstanding river for trout fishing.(82) However,
dewatering of streams by irrigation diversions is a substantial and
chronic problem.(83) The upper basin also has a serious water quality
problem due to toxic metals, with four mining-related Superfund sites in
the area.(84)

Cooperative local watershed efforts in the Clark Fork Basin grew
out of conflicts over water use, especially instream flows. In 1985, the
Montana Department of Fish, Wildlife, and Parks filed a request to
reserve water for instream flows in the Upper Clark Fork;(85) shortly
thereafter, a local conservation district filed a competing reservation
request for irrigation water storage projects.(86) As the dispute came
to a head, the nonprofit Northern Lights Institute convened the
principals in the Upper Clark Fork to discuss how to resolve the issues.
Prior to the 1991 legislative session, the irrigators agreed to a
moratorium on new surface water rights from the Clark Fork, pending
further talks with the other interests. The 1991 Montana Legislature
then chartered the Upper Clark Fork River Basin Steering Committee.(87)

The 1991 legislation directed the Montana Department of Natural
Resources Conservation to appoint the members of the steering committee,
based on "their knowledge of water use, water management, fish,
wildlife, recreation, water quality, and water conservation."(88)
In practice, the state selected many of the same people who had been
involved in the Northern Lights negotiations.(89) The statute required
that the committee must at least include representatives of agricultural
organizations, conservation districts, departments of state government,
environmental organizations, industries, local governments, reservation
applicants, utilities, and water user organizations.(90)

The 1991 statute directed the Steering Committee to complete an
Upper Clark Fork River Basin comprehensive management plan by the end of
1994. The plan was to consider and balance all beneficial uses of water
in the Basin and make recommendations on how to resolve the Basin's
water issues.(91) The Steering Committee's plan, completed in
December 1994, recommended several measures, including closure of the
Upper Clark Fork to all new water rights, investigations of structural
and nonstructural storage prospects, measures to "encourage"
better water quality protection, and a pilot program to lease water
rights for instream uses.(92) The Montana Legislature codified many of
the plan's elements in 1995.(93) The 1995 statute also continued
the Steering Committee, directing it to review the progress of
management actions, make recommendations to the Montana Legislature, and
serve as coordinator and facilitator on water issues in the Upper Clark
Fork Basin.(94)

c. Oregon-Wallowa County

Wallowa County is the northeasternmost county in Oregon. The major
rivers draining the county are the Grande Ronde and Imnaha, both
tributaries of the Snake. Most of the county is federal land, either
within the Wallowa-Whitman National Forest or the Hells Canyon National
Recreation Area. Timber, grazing, and tourism are key elements of the
county's economy.

Declining salmon runs in Wallowa County and the imminent listing of
Snake River chinook salmon under the Endangered Species Act(95) caused
Wallowa County and the Nez Perce Tribe to join forces in developing a
salmon recovery plan. Wallowa County citizens expressed interest in fish
restoration and the protections of existing economic uses of public
lands. The Nez Perce Tribe wanted to rebuild the salmon runs, because,
though it has its reservation in Idaho, the tribe holds treaty fishing
rights in Wallowa County under its 1855 treaty with the United
States.(96)

The county and the Tribe formed a Wallowa County Salmon Recovery
Strategy Committee. The Committee comprised Wallowa County citizens
(representing grazing, timber, business, community, and environmental
interests); representatives of the Nez Perce Tribe; and state and
federal natural agency officials (from BLM, the U.S. Forest Service, and
Oregon Department of Fish and Wildlife).(97) In part, members were
selected for their ability to work cooperatively on the issues;
so-called "extremists" from the local community were not
invited.(98)

The Committee's mission was:

To develop a management plan to assure that watershed conditions
in Wallowa

County provide the spawning, rearing, and migration habitat
required to

assist in the recovery of Snake River salmonids by protecting and
enhancing

conditions as needed. The plan will provide the best watershed
conditions

available consistent with the needs of the people of Wallowa
County, the Nez

Perce Tribe, and the rest of the United States ....(99)

In August 1993, the Committee produced the Wallowa County/Nez Perce
Tribe Salmon Recovery Plan.(100) The plan described salmon habitat
requirements and desired conditions, analyzed habitat problems, and
identified possible solutions within twenty-seven Wallowa County
sub-basins. The major focus was on forestland management, although the
plan also addressed factors such as irrigation diversions and
recreational river uses.(101) The plan recommended implementation
through a cooperative, consensus approach, even for activities involving
federal lands.(102) After producing the plan, the county formed the
Wallowa County Watershed Enhancement Committee to provide for its
implementation.(103)

The plan already has achieved some of its goals by receiving
favorable, albeit brief, mention in both the NMFS, Proposed Recovery
Plan and the NPPC Fish and Wildlife Program.(104) Moreover, the larger
Grande Ronde Model Watershed Program later incorporated the Wallowa
County/ Nez Perce Plan.(105)

d. Washington-The Yakima River Basin

The Yakima River drains much of south-central Washington before
emptying into the Columbia River at the hi Cities. The upper Basin is
largely national forest land, and the Yakama Indian Reservation(106)
occupies much of the Basin west of the River and below the city of
Yakima. Irrigation is the region's dominant use of water and has
helped the Yakima Basin become an enormously productive agricultural
region.

Yakima Basin citizens launched a watershed initiative in response
to a persistent drought that contributed to significant water shortages
in the 1990s. The impetus came from a small group of agricultural
producers and processors, area businesspersons, and concerned
individuals.(107) At first the group was primarily interested in
advocating a project to pump Columbia River water up into the Yakima
Basin.(108) In March 1994, however, the citizens formed a more diverse
Yakima River Watershed Council "to integrate a broad spectrum of
water-based interests in the three-county area, encompassed within the
Yakima River Basin, into a consensus process for the purpose of
sustaining a sufficient water supply for all stake holders into the 21st
Century."109)

The Yakima River Watershed Council claims a large and varied
membership of individuals and a wide range of public and private
entities.(110) Its board of directors numbers an astonishing fifty
people,(111) and it has selected a twelve-member executive committee.
Both the board and the committee include representatives of varied
interests. In addition, the Council has set up technical committees to
address a number of specific topics.(112)

The Council's mission statement is "[t]o develop and
implement, through consensus, a plan to provide consistent and adequate
water to meet all economic, cultural, and natural environmental needs in
the Yakima River Basin."(113) The Council seems to have identified
a number of possible options for meeting this goal, such as
conservation, storage, and watershed restoration, but it is initially
interested in acquiring streamflow data.(114)

5. Tribal Efforts

Indian tribes are involved in a number of watershed management
activities in the Northwest. Tribes participate in watershed efforts at
many levels and in many capacities. Tribal activities range from
directly implementing watershed restoration measures on and off their
reservations, to serving on local watershed councils, to participating
in federal ecosystem management efforts.

The actions of the Confederated Tribes of the Umatilla Indian
Reservation (Umatilla Tribes) illustrate the diversity of tribal
involvement in watershed management. The Umatilla Tribes'
reservation straddles the upper Umatilla River east of Pendleton,
Oregon. The Tribes accepted this reservation in an 1855 treaty with the
United States,(115) under which they ceded over six million acres in
present-day eastern Oregon and Washington. They retained hunting and
fishing rights across this vast area, however, and thus have a major
interest in several watersheds outside the Umatilla Basin.(116)

The Umatilla Tribes have taken the lead in an effort to restore
health to the Wildhorse Creek watershed, part of which is within their
reservation. After studies showed that the Wildhorse Creek Basin created
serious nonpoint source pollution problems for the Umatilla River, the
Umatilla Tribes made it a major focus of their watershed restoration
efforts.(117) They met with the public and local landowners and
expressed an interest in working on watershed projects in the Wildhorse
Creek Basin.(118) The tribal effort gained momentum after implementation
of a demonstration project involving a major riparian landowner.(119)
The Tribes are currently undertaking several additional projects
involving measures such as fencing, check dams, and streambank planting.
Public agencies and private conservation groups have participated
actively in these projects.(120) The goal of the tribal effort is
improved water quality and, over the longer term, restoration of salmon
and steelhead to Wildhorse Creek.(121)

Representatives of the Umatilla Tribes serve on both the Umatilla
and Walla Walla Basin watershed councils.(122) An Umatilla Tribal
representative was also a charter member of the Grande Ronde Model
Watershed Board.(123) This representative explained the Umatilla Tribes
are participating in the Grande Ronde program because

[i]t is an opportunity to work with people truly affected by issues
and

plans.... Tribal involvement benefits the [program] by bringing the
clout of

tribal government, which often works at the federal level, to a
local effort.

. . . Our hope for the Model Watershed . . . is that it will
result in a

restoration of the salmon economy for the tribes and that it will
mesh in a

positive way with the non-tribal economy in the basin.(124)

Because of their interest in the overall health of salmon stocks in
the interior Columbia Basin, the Umatilla Tribes have also taken a
basinwide approach to water and watershed management. Their 1995
Columbia Basin Salmon Policy(125) addressed the broad issues of water,
harvest, and hatchery fish supplementation on a regional basis and
called for actions to restore the health of the tributary,
Columbia-Snake mainstem, estuary, and ocean ecosystems. The plan stated
the Umatilla Tribes' support of certain measures to restore
adequate instream flows and rebuild salmon habitat throughout the
Columbia Basin.(126)

The work of the Umatilla Tribes illustrates the broad range of
tribal involvement in Northwest watershed issues but by no means tells
the whole story. Tribes have played a key role in developing watershed
strategies in several areas, including the Nez Perce Tribe's
partnership with Wallowa County in preparing a salmon recovery plan(127)
and the Jamestown S'Klallam Tribe's role as coordinator of the
Dungeness-Quilcene watershed planning effort.(128) Northwest tribes have
also worked collectively to address regional salmon recovery and
ecosystem health issues through the Columbia River Inter-Tribal Fish
Commission and the Columbia Basin Fish and Wildlife Authority.(129)

The foregoing review of selected watershed management activities
shows how popular this approach has recently become in the Northwest.
Nearly all of these efforts have been launched since 1990, so they have
not yet had time to produce major tangible results. Because they do not
have a proven record of success, watershed approaches must be gaining
acceptance for other reasons. The following section explores what these
reasons might be.

B. Reasons for the Popularity of Watershed Approaches

The 1990s have been a time of strife in natural resources
management in the West. Conflict has become commonplace, while consensus
has proved elusive. "Ecosystem management" has itself been
criticized, both by resource users who fear additional restrictions to
protect natural resources and by environmentalists who oppose any
weakening of current measures.(130) Federal efforts at ecosystem
management have been viewed with particular suspicion, partly because
neither side trusts the federal agencies and partly because no one is
certain what ecosystem management actually means.

The watershed movement, however, seems to have built a diverse
constituency. As explained above, the watershed approach has been
initiated by federal agencies, rural counties, environmental groups, and
business interests alike. Watershed protection seems to be one of the
few concepts that currently enjoys support from many environmentalists,
resource users, and management agencies. Of course, these groups do not
necessarily support the idea for the same reasons.

1. Ecological Benefits

Watershed management offers the possibility that natural resources
will be protected more effectively and comprehensively than they have in
the past. Under a truly holistic approach to watersheds, individual
resources and activities are not viewed in isolation. This approach
acknowledges and understands the interconnectedness of everything in the
watershed, all the lands, waters, and creatures, human and otherwise.
The holistic approach entails recognizing all the effects resulting from
humanity's actions and making decisions that protect and promote
the long-term health of the watershed and all its inhabitants. In
theory, at least, watershed management is truly a better approach.

The crash of Northwest salmon and steelhead runs has given the
watershed approach a strong push. Not only has the salmon crisis made it
necessary to do something, but it has shed light on the many factors
causing the decline of freshwater salmon habitat. As stated in the NMFS
Proposed Recovery Plan, "[l]and and water management actions,
including water withdrawals, unscreened water diversions, stream
channelization, road construction, timber harvest, livestock grazing,
mining, and outdoor recreation have degraded important salmon spawning
and rearing habitats."(131) Thus, federal agencies recognize that a
wide variety of human activities adversely affect fish populations and
habitat. Salmon advocates are hoping that watershed management can
provide a stronger and more comprehensive approach to these varied
threats, on private as well as public land.

2. Local Control

A second reason for the popularity of the watershed approach has
more to do with economics and politics than with ecology. Many rural
communities in the Northwest rely heavily on the use of public resources
such as water(132) and federal lands as their economic foundation. Such
communities often believe they have little control over how these
resources are managed, especially given recent injunctions against
logging, grazing, and other activities on federal lands.(133) Some of
these communities have launched watershed councils, motivated largely by
a desire to maintain existing economic activities and increase local
control over public resources.(34)

In eastern Oregon, at least, the potential economic impacts of the
salmon crisis seem to have driven local watershed efforts. This was
certainly true of the Wallowa County/Nez Perce Salmon Recovery
Plan.(135) The 1993 Oregon Legislature chose the South Coast/Rogue and
Grande Ronde Basins to become the state's model watersheds-and thus
to receive the bulk of $10 million in watershed program funding-because
of concern that salmonid species in those basins would soon be listed
under the Endangered Species Act.(136)

The membership composition of some Oregon watershed councils
strongly indicates that their primary goal is the protection of existing
economic activities.(137) For example, the Umatilla Basin Watershed
Council was originally formed with thirteen members, of which eight to
ten were closely associated with irrigated agriculture.(138) Moreover,
the original representative of "fisheries" interests on the
Council was president of the Eastern Oregon Irrigation Association.(139)
For some watershed council members, restoring ecological health seems to
be a secondary goal. As one member of the Grande Ronde board put it:

In Wallowa County, resource users played a major role in developing
a salmon recovery plan. The Wallowa County Salmon Recovery Strategy
Committee was heavily weighted toward grazing and especially logging,
with eight of eighteen members having direct timber ties.(141) Forest
management was a major focus of the Wallowa County Plan, and several of
the plan's recommended management approaches could encourage
logging.(142) In commenting on a draft of the plan, both the Forest
Service and the Bureau of Reclamation criticized the plan's
emphasis on thinning dense stands of trees and indicated that this
action could do more harm than good.(143)

An additional motivation for some local watershed efforts seems to
be a desire to reduce the influence of "outsiders," such as
government agencies, nonresident environmentalists, and federal courts.
This was certainly a strong factor in the formation of the Umatilla
Basin Watershed Council: "As we move forward we seize the
opportunity to control our own destiny. We will be avoiding the
potential for outsiders to demand action. We can identify our own
solutions to the local problems."(144)

3. Cooperation and Consensus

Many watershed management proposals provide that problems should be
approached cooperatively and decisions be made by consensus. NPPC, in
prescribing a coordinated approach to habitat planning, "urges all
parties to undertake, collectively and voluntarily, the habitat
assessment and restoration actions needed" for salmon recovery on a
"truly collaborative" basis.(145) For many local watershed
councils, consensus is a bedrock principle. For example, the Idaho
Legislature recognized and commended the Henry's Fork Watershed
Council for its "nonadversarial, consensus-based approach to
problem solving and conflict resolution among citizens, scientists and
agencies with varied perspectives."(146)

The consensus approach appeals to many people who believe that
natural resource decisions are best made through a process of
cooperation rather than conflict. Despite the increasing polarization
over natural resources in the West, or perhaps because of it, these
people call on all sides to come together and be reasonable. They
maintain that if all sides have access to good, scientifically sound
information, even traditional opponents can find common ground.

That view may be overly optimistic, but many agencies nonetheless
have embraced consensus-based watershed strategies. At least two factors
help explain this result. First, the agencies see voluntary, consensus
approaches as the best way to gain the cooperation of private landowners
and water users. Public lands cannot bear the entire burden of habitat
restoration and species recovery, and the agencies believe it is better
to address private property through cooperation rather than regulation.
Second, many natural resource agencies seem eager to become less
controversial. Battered by strong, conservative political winds, the
agencies have sought to lower their profile by pursuing consensus at the
local level.(147)

Local watershed councils may have other reasons for operating by
consensus.(148) They may consider it the best means to promote watershed
health. However, from the standpoint of conservation, the consensus
approach has both benefits and drawbacks. The benefit of consensus is
that it can reduce resistance and increase cooperation regarding
management actions. The Wallowa County Plan states that nothing will
work without consensus: "Any plan that does not have local
ownership and support as well as the cooperation of government agencies
will not succeed."(149) On the other hand, consensus can certainly
lead to paralysis or to a result that constitutes the "lowest
common denominator."

Local councils may also rely on consensus for economic reasons.
Where a major goal of these councils is to protect existing economic
uses of land and water, a consensus approach ensures that these uses
will not be threatened by council actions. This is especially true where
council membership is heavily weighted toward economic interests, and
where community sentiment strongly favors existing water and land use
activities.(150)

The major reason many people want consensus at the local level,
however, undoubtedly has to do with the nature of rural communities.
People within these communities often have close ties to the place they
live and to the other people who live there. They see firsthand the
environmental, economic, and social effects of natural resource uses and
policies. For better or worse, people in rural communities are
constantly confronted with the human and ecological consequences of
their actions. Thus, it is not surprising that many rural communities
seek to sustain their watersheds in a way that works for the local
population. People have to live there.

In sum, watershed strategies have become popular in the Northwest
for a variety of reasons. No one can yet say how effective they will be,
because the phenomenon is too recent to have produced many tangible
results.(151) But even today, many watershed approaches show a basic,
and perhaps fatal, flaw: not enough attention is given to water
quantity-to restoring and protecting instream flows.

III. THE ROLE OF STREAMFLOW PROTECTION IN WATERSHED MANAGEMENT

A healthy watershed requires some water to flow in its rivers. Many
Northwest rivers, however, are completely dried up because water is
withdrawn for consumptive uses, particularly irrigated agriculture.
Watershed management strategies recognize this problem, but for various
reasons they tend to concentrate more on improving land use practices
and water quality. The four major Columbia Basin states all provide some
legal protections for instream flows, but these protections are neither
adequate nor connected to watershed management programs. If such
programs are to succeed in restoring Northwest watersheds to health,
they must recognize instream needs and provide means to restore and
protect streamflows.

A. Streamflows and Watershed Health

Largely because of water diversions for out-of-stream uses, many
rivers and streams in the Columbia Basin dry up in the summer and many
others are severely depleted. The diversion of entire rivers for private
uses is wholly legal under the prior appropriation doctrine that
dominates western state water law.(152) The states issue permanent
rights allowing a certain amount of water to be taken for a particular
"beneficial use," such as irrigation or household use.(153)
The owner of such a water right may take as much water as the right
allows, even if a river is drained dry as a result, unless that water is
needed to satisfy an older, and thus superior, water right.(154)

In identifying impediments to recovery of the endangered Snake
River salmon, the National Marine Fisheries Service (NMFS) recognized
low streamflows as a major problem and identified irrigation water
withdrawals as the primary cause, especially in the Snake River
Basin.(155) Irrigation accounts for nearly eighty-eight percent of all
water withdrawals in the Pacific Northwest.(156) Irrigation water needs
are greatest in the summer and early fall, during a time when
streamflows are naturally at their lowest due to scarce rainfall and
depleted snowpacks.

The impacts of agricultural water withdrawals in a particular
watershed may be severe, whether irrigators primarily pump ground water,
as in Idaho's Big Lost River Basin, or divert surface water, as in
Oregon's Umatilla River Basin.(157) The Oregon Water Resources
Commission found that in the Umatilla Basin, "[l]ow streamflows are
the chief limiting factor to salmonid production. Low streamflows impede
and block fish migration, increase water temperatures, and contribute to
reduced habitat and competition from warm water fish species."(158)

Two recent studies underscore how vital instream flows are for
salmon and steelhead. The Umatilla Tribes, who evaluated wild steelhead
in the Umatilla River,(159) and the Center for the Study of the
Environment, who evaluated spring chinook in the Rogue River,(160) both
have established a strong positive relationship between river flows and
returns of anadromous fish two to four years later. The Rogue River
study showed that adult salmon returns were more strongly related to
minimum streamflows than any other factor studied, including harvest and
hatchery production.(161) It also suggested that dams and water
withdrawals are major problems for salmon survival on the Rogue.(162)
Daniel Botkin, Director of the Center for the Study of the Environment,
concluded that the lesson of hiS study "is do everything you can to
raise minimum flows."(163)

Many resource management agencies and watershed protection
strategies recognize the importanCe of instream flows and call for
measures to improve them. For example, the Proposed Recovery Plan
repeats the Snake River Salmon Recovery Team's recommendation that
State fishery agencies

ensure that actual streamflow withdrawals for diversions are not in
excess

of legal water rights. If insufficient streamflows are still
occurring,

reduction of irrigation withdrawals should be sought wherever such
withdrawals

lead to insufficient streamflow for habitat, impede downstream or
upstream

passage, or infringe upon water quality control at any downstream
location.

(164)

Other management plans that recognize the need for instream flows to
restore fish habitat and watershed health include the Northwest Power
Planning Council's Fish and Wildlife Program,(165) the federal
PACFISH strategy,(166) the Grande Ronde Model Watershed Program's
Operations-Action Plan,(167) and the Umatilla Tribes' Salmon
Policy.(168)

B. Water Right Troubles

Despite recognizing the importance of instream flow restoration and
protection, watershed management plans generally attempt to provide fish
habitat by other means, such as improving land use practices and adding
"structure" to streams. Sometimes this approach can be
explained largely by agency jurisdiction: Because the U.s. Forest
Service and U.S. Bureau of Land Management are land management agencies,
their plans focus on land use. But other plans, even though they aspire
to holistic watershed management and stress the need for water instream,
do not address streamflows effectively. Instead, they are stymied by
western water law and politics.

As an example of this, NPPC's Fish and Wildlife Program calls
for a holistic, watershed-based approach to salmon habitat: "A
total watershed perspective, in which fish needs, land and water
conditions, and local, private and government initiatives are viewed
together, will play an essential role in the ultimate success of efforts
to rebuild salmon and steelhead runs."(169) The Program
specifically recognizes the need for instream flows, and calls on the
states, the Bureau of Reclamation, and the Bonneville Power
Administration to take certain steps to ensure adequate flows.(170) But
Congress has limited NPPC's ability to address streamflows, by
requiring the interstate agency to defer to state laws governing water
allocation:

Congress and the Council recognize that this program must be
implemented

within a complex scheme for allocating rights to use Columbia River
Basin

water. As noted in the Northwest Power Act, . . . nothing in this
program

authorizes appropriation of water, affects rights to water or
jurisdictions

over water, or establishes the respective rights to water of the
federal

government, individual states, Indian tribes or individuals. The
Council

assumes that the federal implementing agencies will work hard to
develop

cooperative and creative ways to implement the program's water
flow measures

with those requirements in mind.(171)

Thus, NPPC maintains that although water is urgently needed for
instream use, it generally cannot be provided except through
"cooperative and creative" means.(172)

The Northwest Power Act's specific disclaimer on water
rights(173) illuminates an important point. Watershed management efforts
throughout the region proceed on essentially the same basis: Go forth
and do good, saving fish and promoting ecosystem health in a holistic
manner, but Don't Mess with Water Rights.(174)

This result is determined in part by legal considerations. Even
though water rights confer only a limited right to use water owned by
the public, they are generally considered to be property rights.(175)
State law predominately determines how western waters are used. Even
federal water laws, such as the Clean Water Act(176) and the reclamation
laws,(177) acknowledge the primacy of state law in water
allocation.(178)

The biggest constraint on watershed management efforts to improve
instream flows, however, may be politics. For the most part, Northwest
water users, especially irrigators, have successfully resisted changes
that could provide environmental benefits.(179) Irrigators and other
water right holders have enormous influence in the capitals of Northwest
states. The legislatures of these states will go to great lengths to
protect existing water uses and users.(180) Water users' political
influence is almost certain to insulate them from any watershed
management strategy at the state level. At the local level, especially
in rural areas heavily dependent on agriculture, irrigation and ranching
interests have even greater control.

Given that many watershed efforts seem to be motivated largely by
various parties' interests in pursuing consensus, reducing public
conflict over environmental issues, and asserting local control over
natural resources,(181) political constraints seem even more
significant. No federal or state official who wants to avoid conflict is
likely to make an issue of water rights. Even more clearly, no watershed
council with a strong interest in protecting the local economy is likely
to propose substantial changes in water use. It is easier for all
concerned to focus on somewhat less controversial matters, such as
installing fish screens, planting trees along riverbanks, and keeping
cattle away from riparian areas. While land use changes may improve
flows at certain times by helping to restore the natural
hydrograph,(182) such measures offer limited benefits on
overappropriated rivers with inadequate streamflow protection.(183)

C. Water Rights and Local Watershed Strategies

In some Northwest river basins where there is enough water to meet
instream and out-of-stream demands, instream flow protection need not be
the top priority of a watershed management approach. In many basins,
however, seasonal low flows, exacerbated by out-of-stream diversions,
are a major problem, and streamflow restoration is an urgent need.
Unfortunately, watershed management efforts in such basins have been
hindered by water rights concerns, both legal and political

The Lemhi River Basin is a case in point. The Lemhi flows into the
Salmon River in east-central Idaho, and the Basin has been heavily
developed for agricultural irrigation. As explained in a 1990
state/tribal review of the Basin, "the Lemhi's flow is totally
appropriated for irrigation; the use of water from the watershed for
irrigation influences discharge patterns more than any other
factor."(184) The review also noted that "irrigation
diversions were impacting anadromous fish production in the Lemhi and
the headwaters of the Salmon River as early as the 1850s" and that
"[i]rrigation withdrawals have reduced flows, limiting juvenile and
adult passage and increasing water temperatures, often to critical
levels for anadromous fish during summer months."(185)

In 1992, the Lemhi Basin was selected as a model watershed project
under NPPC's Fish and Wildlife Program.(186) A fifteen-member
advisory committee was formed "representing local residents, Indian
tribes and conservation groups," with the support of a technical
committee of agency professionals.(187) Like many local watershed
councils, the Lemhi advisory committee developed a vision statement(188)
and is guiding the preparation of a watershed management plan.

Moreover, the Lemhi watershed effort has produced some actual water
instream at a critical time for salmon. Under a multi-party Memorandum
of Understanding, irrigators jointly agreed to forego diversions for a
twelve-hour period up to three times a year if low flows cause fish
passage problems in a certain reach of the Lemhi. On July 21, 1994,
operation of the "Lemhi fish flush" dramatically raised flows
in the targeted reach, although it is not clear the operation actually
helped any fish.(189) The "flush," along with other steps
taken or planned in the Lemhi Basin,(190) show a serious commitment to
improving fish habitat.

Nonetheless, low flows caused by irrigation withdrawals continue to
be the major problem for salmon habitat in the Lemhi watershed. As
stated in the NMFS Proposed Recovery Plan,

even though the Lemhi process has been very helpful in building
partnerships

and has resulted in measurable subbasin improvement, difficulties
still

remain because: (1) The river is over-appropriated for irrigation,
and (2)

major tributaries are regularly dewatered for irrigation. No
significant

improvement in spring/summer chinook salmon passage and rearing
habitat for

the Lemhi River as a whole is likely to occur unless changes in
local

agricultural practices are made.(191)

In the Henry's Fork Basin, a cooperative process produced some
worthy potential projects beneficial to streamflows, but legal issues
involving water rights have impeded these projects. According to Jan
Brown, cofacilitator of the Henry's Fork Watershed Council,
"[w]e've got at least four projects that have received
endorsements from the Council, where farmers want to return water to the
stream, but they're running into their own water law as an
obstacle."(192) Idaho water law does not allow the lease or
transfer of private water rights for instream use.(193)

In Oregon, such leases are allowed by law(194) but are sometimes
hindered by politics. The Grande Ronde Model Watershed Board recently
refused--officially, "deferred"--a funding endorsement for a
project involving a short-term, voluntary lease of water rights for
instream uses in the Lostine River Basin. One board member voiced
opposition, as a matter of principle, to any separation of water rights
from the appurtenant land. The Board voted 6-5 to defer the
proposal.(195) Thus, the Grande Ronde Board was split down the middle
over the issue of a short-term voluntary lease of water rights for
instream uses. This result illustrates the potential political problem
that consensus-seeking local watershed councils may encounter as they
attempt to do anything regarding existing water rights.

D. State Instream Flow and Water Planning Efforts

Idaho, Montana, Oregon, and Washington all have laws allowing state
agencies to establish instream water rights or minimum streamflows. All
but Idaho also allow private water rights to be converted to instream
use, at least temporarily. In addition, each state has laws providing
for a comprehensive state water plan to be developed watershed by
watershed. For the most part, these streamflow protection and water
planning programs are not directly connected with the watershed efforts
described in Part II of this paper. Experimental planning efforts in
Montana and Washington, however, produced locally driven watershed
management plans that attempt to address instream flow issues at the
basin level.

1. State Instream Flow Laws

State agencies have the primary role in establishing water rights
for instream uses in the Northwest states. Idaho allows its Water
ResourceBoard and Department of Water Resources to set minimum
streamflows, subject to disapproval by the legislature.(196) Montana
allows both state and federal agencies, along with political
subdivisions of the state, to apply to reserve water "to maintain a
minimum flow, level, or quality of water" in any of six designated
river basins.(197) Oregon authorizes three state agencies to seek
instream water rights for fish and wildlife, water quality, recreation,
and scenic attraction.(198) Washington grants its Department of Ecology
the exclusive authority to establish minimum water flows or levels to
protect the public interest.(199) Oregon was the first state in the
region to pass its original minimum streamflow law in 1955; Montana was
last, enacting its first general law on instream flows in 1973.(200)

A basic problem with these state instream flow programs is their
late inception. Many Northwest rivers were fully appropriated by the
early 1900s; on such rivers, late twentieth-century water rights often
receive no water, especially in the irrigation season. A junior instream
water right on an over-appropriated river does have some benefits; it
can keep the shortage from getting worse and may block certain transfers
that could harm streamflows. But it does not stop senior water right
holders from drying up a river.(201) In other words, instream water
rights can protect existing streamflows but cannot necessarily restore
them.

Recognizing this shortcoming, three Northwest states(202) have
enacted laws allowing private water rights to be converted to instream
use under certain conditions. Oregon's 1987 Instream Water Rights
Act(203) allows any person to purchase, lease, or accept a gift of an
existing water right and convert it to an instream water right, either
permanently or temporarily.(204) Washington law authorizes its
Department of Ecology to acquire water rights in certain river basins
and convert them to instream use under a "trust water rights"
program.(205) The 1995 Montana Legislature established two programs--one
applying statewide, the other applying only to the Upper Clark Fork
Basin--that allow a temporary change of water right for instream use
"to benefit the fishery resource."(206)

Oregon and Washington have also provided a legal mechanism to allow
a certain portion of water "saved" through water conservation
measures to be dedicated for instream uses. The Oregon Conserved Water
statute(2070 allots at least twenty-five percent of saved water to
instream uses, and the percentage may be higher if public money finances
more than twenty-five percent of the conservation measures.(208)
Washington's trust water rights program provides that "net
water savings" from conservation projects be treated as trust water
rights, although these may be used for either instream or consumptive
uses.(209) The rationale for these programs is as follows:

Historically, appropriated water which was conserved through
efficiency

or not beneficially used was considered reduced waste and returned
to the

stream for use by other water right holders or reappropriation by
the state.

No means existed for redirecting the use of this water. Water not
put to

beneficial use was considered forfeited. The trust water rights
program allows

water saved through efficiency to be transferred to a new use,
while

retaining the original priority date.(210)

Aside from a few recent, short-term water right leases in Oregon,
however, little use has been made of these innovative programs to
restore instream flows. Explanations for this lack of activity vary.
Water users interested in making water available for instream uses may
face uncertain results, indeterminate transaction costs, a potential
reduction in property values resulting from an apparently smaller water
right, and almost certain peer pressure from people and groups who
believe that water should not be separated from the land. Incentives for
instream water transfers, leases, and conservation projects have not yet
overcome such obstacles, particularly because water users have very
little to lose by maintaining the status quo.

2. State Water Planning Programs

All four Northwest states have laws requiring comprehensive state
water resource planning.(211) In each case, the plans must be adopted by
the state water resource agency, board, or commission. Each plan
involves a mix of local public and state government involvement, with
Washington's process being the most locally driven. Of the four
statutes, Idaho's is the most detailed and prescriptive, while
Washington's is the least so.(212) All are essentially similar,
involving several common elements:

* Information gathering. Idaho, Montana, and Oregon all require
that the responsible agency conduct certain studies as the basis for
planning.(213)

* Comprehensiveness. The four statutes call for integrated and
coordinated,(214) comprehensive(215) plans that address the use of all
of the state's water resources.(216)

* Maximum development/use. All statutes but Washington's
emphasize the desirability of maximizing the amount of water available
for use by the people of the state.(217)

* Planning by basin. All four statutes contemplate that the state
water plan will be developed at the basin or watershed level.(218)

* Public participation. Three statutes require a local public
hearing before a basin plan is adopted, while the Washington statute
provides for more general public participation.(219)

Despite these basic similarities in their statutes, the Northwest
states produced four very different types of water plans. One major
distinction between the four state water plans is their treatment of
instream flows. The following subsections review selected water planning
materials from each of the four states.

a. Idaho

The current Idaho state water planning statute was adopted in
1988.(220) In 1978 the Idaho Legislature adopted the Water Resource
Board's original water plan but specified certain
"changes" that established state water policy on thirty-seven
subjects. These subjects ranged from identifying unrecorded water
rights, to protecting potential reservoir sites, to monitoring
radioactive waste disposal.(221) Policy No. 1 is '"protection
of existing water rights." Policy No. 6 states: "Water rights
should be granted for instream flow purposes. The legislation
authorizing this policy should recognize and protect existing water
rights . . . ." Policy No. 32 sets the famous target flow of zero
at Milner Dam on the Snake River.(222)

Under the 1988 law, the Comprehensive State Water Plan is to be
written at the watershed or sub-basin level. The Idaho Water Resources
Board is responsible for the plan, although local input weighs heavily
in plan development.(223) These plans, not unlike the planning
requirements under the National Environmental Policy Act,(224) consider
the environmental conditions within a basin, discuss water resource
issues affecting the area, and analyze alternatives.(225) In terms of
"Actions and Recommendations," the plans focus heavily on
designating particular stream reaches as natural or recreational.226)
Within these reaches, the plans prohibit or limit such activities as the
construction or expansion of dams, the construction of hydropower
projects or diversion works, or the conduct of various activities within
the stream channel.(227)

With respect to instream flows, the Middle Snake Plan identified
minimum streamflows that have been established or applied for under
Idaho law. It noted that the State Water Plan specifies a minimum flow
of zero at Milner Dam.(228) The Middle Snake Plan also recognized,
however, that the public interest requires increased flows in the Snake:

As a long-term goal, the Water Board will work toward higher
river flows

during the summer months. The Idaho Water Resource Board would like
to see

more than a zero flow at Milner and will continue to examine
options to secure

flow throughout the year at the dam or main powerhouse. Increased
flows would

improve some aspects of water quality and fish habitat, and restore
some of

the scenic beauty to Twin Falls, Shoshone Falls, and many of the
smaller, less

famous waterfalls within the reach. At this time, there is no ready
mechanism

to provide this water. Increased irrigation efficiency could lead
to increased

operational flexibility in the Snake River, and perhaps more water
through

the Middle Snake reach during low-flow periods. . . .(229)

But while the Middle Snake Plan acknowledged the need for greater
streamflows, its only recommendation was that the state study methods
for increasing flows in the Middle Snake reach.(230)

The need for instream flow protection was a recurring theme of the
Henry's Fork Plan. That Plan noted that irrigation water diversions
create low flow problems for fish in parts of the basin, recommended an
examination of the need for minimum flows, and stated that such flows
should be sought where a need is identified.(231) The Plan also
recommended that water of sufficient quantity and quality be protected
for recreation.(232) However, the Henry's Fork Plan also supported
further economic development of the Basin's waters, particularly
for irrigation.(233) In general, the Plan placed greatest emphasis on
new development projects; in assessing water supply and water
conservation, the Plan devoted only four sentences to minimum
streamflows but seven pages to potential new storage sites.(234)

b. Montana

The Montana statute does not provide the Montana Department of
Natural Resources and Conservation with much guidance, except that the
sections of the state water plan are to be developed by river
basin.(235) Thus far, however, Montana's water planning has not
proceeded that way. Instead, the state has produced the plan in sections
addressing statewide issues, such as water storage, integrated water
quality and quantity management, and drought management.(236) These
sections identify and briefly discuss issues, declare state water policy
on these issues in one paragraph, and set forth options and
recommendations for resolving the issues.

The subsection on instream flow protection recognizes that Montana
must do more to protect streamflows effectively. It adopted the
following policy statement:

Instream flows are an important use of water, and mechanisms
should be

developed and refined to protect and enhance instream resources.
However,

instream flow protection activities must not adversely affect
existing water

rights and should be weighed and balanced against alternative
future uses of

water.(237)

The plan makes four recommendations: 1) revise the water rights
permitting process to improve instream flow protections; 2) consider
making instream water reservations more secure; 3) allow voluntary water
right leases for instream uses; and 4) conduct research on matters
related to streamflows.(238)

Montana now seems ready to move ahead with water planning at the
river-basin level. The state intends to initiate pilot projects in one
or two basins, beginning with the formation of basin advisory committees
representing all affected water users and interests. The hope is that
these local committees can address problems through a cooperative
approach. The committees are to identify their basins' water
resource issues, evaluate and select options to resolve them, and
incorporate them into a basin plan. Such plans will be reviewed by the
Department of Natural Resources and Conservation; upon approval, the
plans will become part of the State Water Plan.(239)

Local water planning efforts are proceeding in roughly a dozen
Montana basins, with various levels of state involvement and assistance.
These basins include the Flathead, Musselshell, Muddy, Bitterroot, and
Kootenai. Of these basin planning efforts, the Flathead is perhaps
furthest advanced.(240)

In one Montana watershed, a local committee has already developed a
plan that has essentially received legislative approval. The Upper Clark
Fork River Basin Steering Committee produced a water management plan for
that basin in December 1994.(241) The plan described the steps that were
taken in developing the plan, including the public involvement, and
discussed existing basin conditions in some detail. It also made
recommendations on nine matters relating to existing and new water
rights, water management, water quality, and instream flows.(242)

The Upper Clark Fork Plan acknowledged that irrigation creates a
major problem of stream dewatering:(243) Over 471 miles of streams in
the Basin, including nearly 93 miles of the Upper Clark Fork mainstem,
are listed by the state as "chronic[ally] dewatered."(244) In
response, the Plan recommended closing the Basin to most new
waterlights, while protecting existing rights. It recommended a pilot
program to allow the leasing of water rights for instream uses(245) and
suggested that the Montana Department of Fish Wildlife and Parks
"continue to seek willing landowners to help solve dewatering
problems."(246)

c. Oregon

Oregon's approach to basin planning is fairly similar to
Idaho's approach. Statutes establish the basic policies under which
the state water resources program is to proceed. As in Idaho, the first
policy is protection of existing water rights.(247) Oregon law also
favors "maintenance of minimum perennial stream flows sufficient to
support aquatic life, to minimize pollution and to maintain recreation
values . . . if existing rights and priorities under existing laws will
permit."(248)

The Oregon water resources program is a collection of eighteen
basin plans or programs, each adopted for a particular watershed.(249)
Under these plans, the Water Resources Commission makes a series of
findings regarding the water resources of the basin, existing instream
and out-of-stream water uses, and possibilities for water demands and
development in the future.(250) The primary result of basin programs is
that waters from a particular source are "classified" for
particular purposes-that is, new uses of water are allowed only for the
purposes specified in the basin program.(251) For example, the South
Coast Basin Program classified the waters of the West Fork Milicoma
River and tributaries above Stall Falls for municipal, domestic and
livestock uses, irrigation of lawns and noncommercial gardens not
exceeding one-half acre in area and instream use for recreation, fish
life, and wildlife.(252)

Most or all of Oregon's minimum perennial streamflows were
adopted as a part of basin programs.(253) Minimum perennial streamflows
are not water rights, but rather administrative rules protecting flows
below specified levels, subject to certain exceptions.(254) In contrast,
instream water rights are water rights for a given flow in a given reach
with a definite priority date. The Water Resources Commission converted
the vast majority of minimum perennial streamflows into instream water
rights, as directed by statute.(255) The Water Resources Commission no
longer sets new minimum perennial streamflows through the basin
programs. Instead, it considers instream water right requests along with
other water right applications.(256)

Oregon's basin programs address streamflows in several ways.
For example, the Grande Ronde River Basin Program found that instream
flows in the basin were insufficient to meet instream needs, and that
existing consumptive water uses could cause "zero flows or flows
approaching

the zero level during critical low flow periods."(257) This
program also concluded that the 1961 minimum perennial streamflow for
the Grande Ronde River was inadequate and that a state agency's
1985 minimum perennial streamflow request was "more appropriate for
the support of aquatic life" than a previous request.(258) In
addition, the Grande Ronde Program established minimum perennial
streamflows in various sub-basins and stated that new appropriations
would not be allowed when flows fell below those levels.(259) On the
other hand, in the 1984 South Coast Basin Program, the Water Resources
Commission rescinded two minimum perennial streamflows and reduced two
others that had been established in the 1964 program, while retaining
most of them and establishing two new ones.(260) Finally, both programs
classified waters only for specified uses, and did so partly to protect
remaining streamflows from impairment caused by new appropriations for
other uses.

d. Washington

While Washington has statutes on water resource planning, a
document known as the Chelan Agreement primarily guides the state's
planning actions.(261) The purpose of the Agreement is to
"establish procedures to cooperatively plan for the management of
water resources in Washington State to best meet the goals and needs of
all its citizens."(262) The Chelan Agreement resulted from a 1990
conference involving over 150 people from throughout Washington,
representing agriculture, business, the environment, fishing; and
recreation interests, along with state, local, and tribal
governments.(263) A major impetus for the Chelan Agreement was the
state's desire to resolve conflicts over tribal treaty fishing
rights, as played out in the long-running U.S. v. Washington
litigation.(264)

The Chelan Agreement calls for cooperative water resource planning
at the river-basin level.(265) Eight interests, or "caucuses,"
must be invited to participate in the process: state, local, and tribal
governments; agriculture; environment; sport/commercial fisheries;
recreation; and business.266 Additional interests may gain
"caucus" status by consensus of these groups or by petition to
and upon approval by the Washington Department of Ecology
(Ecology).(267) Each caucus chooses its own representatives.(268) One of
the participating state, local, or tribal government entities plays a
coordinating role.(269) Interested federal agencies are to be
"invited to participate in whatever manner is dictated by that
region."(270) The Chelan Agreement states a preference for
consensus decisions, but also establishes how to proceed in the absence
of consensus:

Each caucus will have one voice in decision-making. The planning
group will

attempt to reach consensus whenever possible. In cases where
consensus is not

possible, decisions will be made by a consensus of the government
caucuses and a

majority of the interest group caucuses. Minority reports, if
prepared, shall be

included in the plan document.

Where consensus among the governments (tribal, state, and local
governments)

and/or a majority of the interests is not achievable, the
Department of

Ecology shall assume the lead role in assuring that the plan is
completed for

the pilot projects in a timely fashion, not to exceed twenty-four
(24)

months.(271)

The regional groups are to prepare water resource management plans
that must address, at a minimum: 1) ground water, 2) surface water, 3)
consumptive needs, 4) nonconsumptive needs, and 5) the relationship
between surface and ground water.(272) Ecology must review completed
plans for compliance with applicable federal and state laws and
regulations; it can accept or remand the plans, but may not change
them.(273) Ecology and local governments must prepare and adopt any new
regulations or ordinances needed to implement the plans.(274)

The Chelan Agreement required Ecology to select at least two pilot
projects for regional planning.(275) Ecology selected the Methow Basin
in north-central Washington and the Dungeness-Quilcene Basins of the
Olympic Peninsula.(276) Plans have now been prepared for these
basins,(277) and Ecology intends to proceed with rulemaking on both
plans.(278) At the time of this writing, the Washington Legislature
appeared likely to appropriate funds requested for the implementation of
these plans.(279)

The Dungeness-Quilcene Plan makes a variety of findings and
recommendations, many of which deal directly with instream flows. For
example, the Plan recommends the setting of instream flows on certain
rivers, the denial of new water rights in one area, and the use of water
conservation and the trust water rights concept.(280) Even more
remarkable is that the Plan contains an agreement among the various
users to share shortages during periods of low water:

The gap between the needs of the fish expressed by recommended
instream

flows, and the present instream flow after withdrawals for
agriculture,

municipal, business and future growth needs is substantial. This is
amplified

by the poor condition of fish habitat, the lack of conservation,
the

inefficiency of irrigation delivery systems in some areas, and the
other uses

which take water from the system. Under the gap strategy, the
Regional

Planning Group agrees to acknowledge that a discrepancy exists, is
likely to

continue indefinitely, and that to some extent the parties will
have to live

with it. In this plan, the RPG makes recommendations intended to
bring the

sides of the gap closer together. Through participating in shared
sacrifice,

the members of the planning group have agreed to share the pain and
share the

gain. When the weather and other conditions provide abundant flows,
ample

water is available for all uses; when the opposite occurs, during
times of

low flows and critical needs for both fish and human uses, ail
sides agree to

restrict uses, and to share water equitably.(281)

In other words, the Dungeness-Quilcene Plan essentially contains an
agreement to manage the Basin's water resources based on equity and
shared sacrifice, rather than water right priorities.(282) The plan does
not specify how the agreement was to be implemented.

The Methow Plan is somewhat less revolutionary but still
progressive. One of its six major conclusions provides that
"[i]nstream flow must be increased to improve fish and wildlife
habitat and preserve and enhance the unique quality of the Methow Valley
while allowing for growth."(283) New water uses must come from
storage or from existing uses, through conservation, transfers, and
agricultural improvements.(284) The Methow Plan also produced an
interdependent package of recommendations to address the Basin's
water problems. These recommendations include setting efficiency
standards for domestic uses and alfalfa and orchard irrigation;
establishing a "water bank" for water saved through
conservation measures as the exclusive source of water for new uses;
allocating saved water, with a ninety percent share for instream flows;
targeting and increasing enforcement activities; and requiring measuring
devices.(285)

E. Streamflow Protection as a Component of Watershed Management

A wide variety of watershed and water management activities are
going on throughout the Northwest. Looking broadly at these activities,
one could conclude that a unified and comprehensive approach to water
and watersheds is possible. The basic elements already exist in many
places. Federal and regional agencies are focusing on watersheds, with
the goal of ecosystem management. All four states have streamflow
protection laws, and all have water resource planning at the basin
level, at least on a pilot basis. Local watershed groups have formed to
address problems in many river basins, and Indian Tribes are actively
involved in watershed management efforts at all levels.

Some of the local watershed groups are beginning to deal with
streamflow issues. A few of these efforts--as in the Lemhi, Upper Clark
Fork, Methow, and Dungeness-Quilcene Basins--have produced some
initially positive results, at least on paper. In other areas, such as
the Henry's Fork and Grande Ronde Basins, a framework is now in
place that could produce future benefits for instream flows.

In those places where the cooperative local approach seems to be
working best, a recurring theme is historic conflict.(286) In many of
these basins, years of discord over water issues finally brought people
to the table. This is true at least in the Henry's Fork, Methow,
and Upper Clark Fork Basins.(287) Traditional adversaries such as
irrigators and tribes, and developers and environmentalists, seem most
likely to try cooperation when all else has failed, when all
participants are sick of fighting, and when all sides have something to
lose from the status quo.

Throughout the Northwest, water and salmon issues are highly
controversial. Cooperation on these issues cannot always be expected, at
least at the state and regional levels. For the reasons discussed above,
however, the watershed approach seems likely to grow in popularity. A
major unresolved question is whether these approaches will meaningfully
address instream flows. The early indications from basins such as the
Upper Clark Fork, Methow, and Lemhi offer some hope. And a few state and
regional proposals recognize the need for watershed management to
include instream flow restoration and protection.

Washington Governor Mike Lowry proposed legislation in 1995 to
provide for genuinely comprehensive, statewide watershed management
planning at the river basin level. This planning would be patterned
after the successful Methow and Dungeness-Quilcene pilot projects,
within the general framework of the Chelan Agreement. As stated in the
governor's proposed legislation,

[s]uch plans will resolve uncertainties about water quality, water
resources,

and habitat conservation measures necessary to preserve the
environment,

must therefore be comprehensive, addressing at a minimum water
quality, ground

and surface water availability and use, economic development, and
habitat

conservation.(288)

The plans would include recommendations on a wide variety of matters,
including water use efficiency and conservation standards, water quality
measures, instream flow requirements, metering and reporting
requirements for new and existing water rights, conditions and
limitations on new water rights, priorities for acquisition and use of
trust water rights, and land use controls and incentives for habitat
preservation and restoration.(289)

In Oregon, a diverse public and private working group(290) issued a
report in 1992 that laid the foundation for the state's Watershed
Health Program. Subsequent legislation directed the state to initiate
the program using the 1992 report as "a framework and
guide."(291) The primary focus of that legislation was establishing
voluntary local watershed councils, which was one of the recommendations
of the report. But the working group's report listed numerous other
"proposed watershed management tools" and indicated that
developing these tools was a high priority for successful implementation
of a watershed management strategy. Many of these tools could directly
or indirectly benefit instream flows, including 1) improving water use
efficiency, 2) allocating a percentage of transferred water for instream
uses, 3) imposing a public interest test on transfers, 4) requiring
measurement and reporting of water use, and 5) improving enforcement to
benefit instream flows.(292) These tools would bolster Oregon's
existing, relatively progressive laws regarding instream flows, such as
those allowing instream leases and transfers of water rights and
allocating a portion of conserved water for instream use.(293)

The most ambitious proposal for comprehensive watershed management
in the Northwest has come from Angus Duncan, former chair of the
Northwest Power Planning Council (NPPC). In 1994, Duncan proposed a
Columbia Basin Watershed Planning Council.(294) Duncan suggested the
NPPC "be specifically charged by the U.S. Congress with setting
forth a general plan for the conservation and efficient use of the
waters and lands affecting those waters of the Columbia-Snake River
Basin."(295) Duncan's proposal is truly far-reaching,
involving Canadian and oceanic habitats as well as U.S. matters. It is
equally expansive in the range of issues to be addressed: 1) water
quality and water quantity, 2) consumptive and nonconsumptive water
uses, 3) species conservation, 4) actions needed to achieve and maintain
sustainability, 5) economic analysis, and 6) distribution of costs.(296)

These proposals have not fared well politically. Despite a
cautiously worded letter of support from Senator Mark Hatfield
(R-Or.),(297) Duncan's proposal proved to be a nonstarter. Most of
the new tools proposed in the 1992 working group report on watersheds
are not under active discussion in Oregon. That report is no longer the
basis of Oregon's watersheds program, which now consists almost
entirely of supporting local watershed councils and their chosen
projects.(298) And Governor Lowry's proposal ran into trouble in a
fractious Washington Legislature, which was unable to deal effectively
with water issues.(299)

These political results are not surprising, given the
anti-government attitude now prevalent in the Northwest. Any proposal
that raises the prospect of regulation, or even hints at an increased
state or federal role in natural resource management, is likely to go
nowhere in the current political climate. At present, the major
political push is for watershed strategies that are locally controlled,
strictly voluntary, and purely cooperative.(300)

Such local efforts are vitally important because they can promote
public understanding and involvement in watershed matters, can increase
conservation activities on private lands, and can establish working
relationships among institutions and people who formerly did not
talk-either out of ignorance or antipathy. Perhaps most importantly,
local watershed efforts can help build support for meaningful action,
cooperation, and change. Without local support, most resource users will
continue to distrust anything labeled "environmental"; even
solutions beneficial to all sides, such as water right leases for
instream flows, will be difficult to sell.

Equally important, however, these local initiatives must be linked
with state, tribal and federal activities. Land management programs,
water resource planning efforts, and instream flow laws all relate
directly to watershed health. These activities should support local
initiatives by providing information, resources, and a legal basis for
management actions. Conversely, local efforts should support federal,
state, and tribal goals and programs, particularly with respect to
resources owned by the public such as water, fish and wildlife, and
federal lands. Actions involving natural resources typically affect many
interests-private resource users, local communities, Native Americans,
and the public--and any watershed management effort must take account of
all these interests, as well as the needs of future generations.

Finally, it is crucial that voluntary, cooperative, local efforts
do not supplant existing laws. Implementation and enforcement of
federal, state, and tribal laws must not be sacrificed for the sake of
consensus.(301)

IV. CONCLUSION

Watershed planning and management activities are moving ahead
throughout the Northwest. Federal and regional agencies, state
legislatures, Indian Tribes, local governments, and private citizens are
embracing the watershed approach. The concept has grown in popularity
for disparate and sometimes conflicting reasons. Agencies and
conservationists perceive a need for a more comprehensive approach to
resource management and species preservation. Local communities and
resource users desire greater control, often as a means of protecting
existing economic activities. All parties have their own reasons for
pursuing consensus.

For legal and political reasons, however, many watershed efforts
focus heavily on land use and deal inadequately with instream flows.
These efforts often are not well connected to state programs for water
resource planning and streamflow protection. Strengthening these
connections may be difficult in the current political climate that is
increasingly hostile to government natural resource management. Progress
in such basins as the Methow, Dungeness-Quilcene, Lemhi, Henry's
Fork and Upper Clark Fork offers some hope, but it is too early to
declare victory in any of these places.

In considering the future relationships among ecosystem and
watershed management, cooperative approaches to natural resource issues,
and instream flow restoration and protection, a few cautionary notes are
in order.

First, water law and water rights will impede progress. The prior
appropriation doctrine, which is the core of Northwest water law, does
not recognize the concept of watershed health. This doctrine allowed
rivers and streams to be drained dry long before any state got around to
protecting minimum flows. State water law and water rights will not
likely be flexible enough to allow large-scale streamflow restoration,
at least in the near future. And virtually every watershed management,
instream flow, or basin planning effort is explicitly conditioned on
protection of existing water rights.

Second, politics may change everything. The federal resource
agenciest focus on ecosystems and watersheds may not last much beyond
1996. The current congressional majority clearly wants these agencies to
focus primarily on commodity production. The same conservative political
winds are blowing through Boise, Helena, Olympia, and Salem. Thus,
federal and state agencies may place less emphasis on far-ranging
resource protection strategies. On the other hand, obtaining consensus
may become an even higher priority for federal and state agencies, in
which case they are likely to rely all the more heavily on cooperative
local approaches. Consensus may become harder to reach, however, as
resource user groups believe they can get better results through the
political process.(302)

Third, what works in one basin may fall in another. The results of
cooperative resource management efforts depend on many factors,
including history, resources, personalities, circumstances, and timing.
Success in a particular river basin often cannot be replicated because
it is so closely tied to a particular place, time, and group of people.
Cooperative approaches have helped ease longstanding conflicts in basins
such as the Henry's Fork and Clark Fork. But they have had mixed
results, at best, in other contentious basins such as Oregon's
Umatilla and Nevada's Carson-Truckee.(303) The optimism generated
by progress in some basins is tempered by setbacks in others.

Fourth, planning is important, but implementation is crucial.
Translating paper gains into watershed improvements will prove difficult
in every case. The potential problems--practical, legal, political, and
fiscal, to name a few--are diverse, numerous, and often concealed. If
these problems cannot be resolved, frustration with the plan and the
process will set in, and even the most heartwarming cooperative efforts
may break down. The Dungeness-Quilcene Plan recognizes these pitfalls at
its conclusion:

This plan now needs implementation. That implementation must be
integrated

with Federal, Tribal and State and local watershed protection
programs.... The

immense effort put into this plan by an participants must not be
wasted; the

time is ripe to move forward in a coordinated effort to better
protect and

manage our water resources on the eastern Olympic Peninsula.(304)

Fifth, these approaches are only now being tested. The majority of
the Northwest's watershed planning and management efforts began
only within approximately the past three years. Some of these newly
sprouted programs, such as those in the Henry's Fork, Methow and
Dungeness-Quilcene Basins, show promise but they have not yet had time
to develop. Similarly, while various strategies exist to restore
instream flows--some based on voluntary transactions, others on water
law reform and enforcement--these approaches also have not been tried on
a large scale.(305) Some of these projects and good ideas might work,
but it is too soon to tell. A facilitator of the Henry's Fork
Watershed Council said, "I still consider this a big experiment. I
hate to have people call us a model, because that implies we've
figured it out."(306)

In the Northwest, we are still figuring out how to resolve many
difficult natural resource issues. But given our crisis over salmon,
steelhead, and other fish, we clearly need new approaches. Experiments
in watershed planning and management are certainly worth trying. If
these experiments are to succeed, they must address streamflows
effectively. Healthy watersheds, like rivers and fish, need water
instream.

(illustrating alarming decline in salmon run populations). (2) A
mayor focus of Snake River salmon recovery efforts has been on the
operation of the hydro dams on the Columbia and snake River mainstems.
This focus seems appropriate because studies show that these darns Kill
both salmon smolts and adults L massive numbers. See Nat'l Marine
Fisheries Serv., U.S. Dep't Of Commerce, Proposed Recovery Plan For
Snake River Salmon V-2-3 to V-24 (Mar. 1995) [hereinafter Proposed
Recovery Plan]. (3) Scott Sonner, Fish Agency Ignored Its Own Advice,
The Oregonian, Feb. 25, 1995, at F1 (reporting that the U.S. Fish and
Wildlife Service disregarded the advice of its scientists that the hull
trout should be listed as a threatened species). (4) Oregon coastal coho
runs hit a record low of about 140,000 fish in 1994, as compared to
historic peaks of at least 1.7 million at the turn of the century. Joan
Laatz, Oregon Rejects Protection for Wild Coho Runs, THE OREGONIAN, Feb.
23, 1995, at B3.

(5) The Clinton Forest Plan defines "ecosystem management"
as "[t]he use of an ecological approach in land management to
sustain diverse, healthy, and productive ecosystems. Ecosystem
management is applied at various scales to blend long-term societal and
environmental values in a dynamic manner that may be adapted as more
knowledge is gained through research and experience. U.S. Forest Serv.
& Bureau Of Land Mgmt., Final Supplemental Environmental Impact
Statement On Management Of Habitat For Late Successional And Old-Growth
Forest Related Species Within The Range Of The Northern Spotted Owl at
glossary 5 (Feb. 1994) [hereinafter Clinton Forest Plan EIS]. The
Clinton Forest Plan defines "ecosystem approach" as "[a]
strategy or plan to manage ecosystems to provide for all associated
organisms, as opposed to a strategy or plan for managing individual
species." Id. (6) See Joseph L. Sax Et Al., Legal Control Of Water
Resources: Cases And Materials 137-38 (2d ed. 1991) (explaining the
prior appropriation doctrine).

(7) The U.S. Geological Survey estimates that irrigation accounts for
nearly 88% of water withdrawals in the Pacific Northwest. Wayne B.
Solley Et Al., U.S. Dep't Of The Interior, Estimated Use Of Water
In The United States In 1990, at 12 (1993).

(final draft is forthcoming in spring 1996). This text is accompanied
by a dynamic diagram of arrows indicating constant feedback. The four
components of ecosystem management are an ecological approach,
partnerships, participation, and scientific knowledge. These components
are illustrated by a more static diagram. These agencies offered a less
involved definition of ecosystem management in the Clinton Forest Plan
EIS, supra note 5.

(10) U.S. Forest Serv. & Bureau Of Land Mgmt., Record Of Decision
For Amendments to Forest Service And Bureau Of Land Management Planning
Documents Within The Range Of The Northern Spotted Owl (Apr. 1994). Even
the Bureau of Reclamation, which has never been a paragon of holistic
resource management, is now making ecosystem noises in the Northwest. In
the words of Regional Director John Keys, "Reclamation welcomes the
challenge of taking water management and supply into a new era-an era of
greater awareness of and concern for the ecosystem, and melding the
values and attitudes of many cultures-past, present, and future."
John W. Keys, Salmon Recovery a priority for the Bureau of Reclamation,
Idaho's Sockeye Scene, Summer 1994, at 6.

(20) See id. at V-1-1 to V-1-67 (consisting of the Tributary
Ecosystem Recovery Tasks).

(21) Id. at V-1-7 (citations omitted).

(22) Id. at V-147

(23) NMFS seems to have chosen the words "useful template"
carefully, as the term appears three times in four paragraphs in the
Proposed Recovery Plan's discussion of local watershed planning
efforts. Id. at V-148 to V-149

(citation omitted).

(24) Id. at V-148

(25) Id. at V-149

(26) NPPC is a planning body established under the Pacific Northwest
Electric Power Planning and Conservation Act (Northwest Power Act), 16
U.S.C. [Sections]839-839h(1994). The Council is made up of
representatives appointed by the governors of Idaho, Montana, Oregon,
and Washington. The Council attempts to balance the needs of the
region's fish and wildlife against the maintenance of a cheap and
dependable power supply.

(27) Fish & Wildlife Program, supra note 1.

(28) In the Columbia River Basin Fish and Wildlife Program, the
Council provides:

The Columbia River Basin is a diverse set of local ecosystems

interconnected by the rivers, streams and creeks that flow through
the system.

Managing the basin effectively requires a systemwide approach that
recognizes

the importance of the health of the natural system.

The Council system goal is a healthy Columbia Basin, one that
supports both

human settlement and the long-term sustainability of native fish
and wildlife

species in native habitats where possible, while recognizing that
where

impacts have irrevocably changed the system, we must protect and
enhance the

ecosystem that remains. To implement this goal, the program will
deal with

the Columbia Basin as a system

Id. at 2-1.

(29) Id. at 7-1

(30) Id. at 7-37 to 7-38.

(31) Id. at 7-34.

(32) Id. at 7-39 to 741

(33) Id. at 7-34 to 7-39.

(34) Id. at 740 to 743.

(35) Id. at 741 to 743.

(36) OR REV. STAT. [Sections]541.350-.395 (1995)

(37) The five voting members of GWEB (pronounced G-web) are the heads
of the Oregon Environmental Quality Commission, the Oregon State Fish
and Wildlife Commission, the Oregon State Board of Forestry, the Oregon
State Soil and Water Conservation Commission, and the Oregon Water
Resource Commission. The nonvoting members are the Governor's
natural resources adviser (who chairs GWEB), the Oregon Director of
Agriculture, and the director of the agricultural extension service at
Oregon State University, plus representatives of the U.S. Forest
Service, U.S. Bureau of Land Management, and U.S. Natural Resources
Conservation Service (formerly Soil Conservation Service). Id.
[SubSection] 541.360(2). (38) Id. [SubSection]541.355(2)(a)(A).
Domestic, municipal, irrigation, power development, industrial, mining,
recreation, wildlife, fish life, and pollution abatement uses are all
"beneficial" by statute in Oregon. Id. [SubSection]
536.300(1).

(41) SWMG was abolished by the 1995 Oregon Legislature. 1995 Or. Laws
690, [SubSection] 1. SWMG comprised the Governor and the following state
agency members: the Directors of the Departments of Administrative
Services, Environmental Quality, Water Resources, Fish and Wildlife,
Agriculture, Energy, Land Conservation and Development, Parks and
Recreation, Economic Development, and Division of State Lands; the State
Forester; the State Geologist; and the Assistant Director of the Health
Division of the Department of Human Resources. OR. REV. STAT.
[Subsection]536.100 (1993), repealed by 1995 Or. Laws 690, [Sections]
25, 26. (42) 1995 Or. Laws 690, [SubSection]2(1). (43) SWMG Policy Work
Group, Proposal: A Watershed Management Strategy For Oregon (1992) (on
file with author) [hereinafter SWMG Work Group Proposal]. For more
information on the SWMG Policy Work Group and its report, see infra
notes 290-93 and accompanying text.

(44) SWMG Work Group Proposal, supra note 43, at 7.

(45) Id.

(46) Id. at 8. The seven functions were to 1) "[f]oster
communication and cooperation among all interests within a
watershed," 2) "[p]rovide a forum for conflict resolution and
decision-making," 3) "[e]nsure a high level of citizen
involvement in all aspects of decisionmaking," 4) "[p]repare
and implement a Watershed Action Program," 5) [m]onitor program
implementation and success," 6) "[s]eek funding," and n
"[c]onduct all meetings as open public meetings." Id. (47)
1993 Or. Laws 601, [SubSection]3 (codified at OR. REV. STAT.
[SubSection]541.388 (1995)). (48) Oregon's Watershed) Health
Program, supra note 39, at 2. (49) Id.

(50) 1995 Or. Laws 187, [SubSection]4 (codifled as amended at OR REV.
STAT. [SubSection] 541.370 (1995)). (51) Local watershed council members
may represent local governments, federally recognized Tribes, public
interest groups, industry, private landowners, state or federal
agencies, academic or scientific organizations, or others.
Id.[SubSection] 7 (amending 1993 Or. Laws 601, [SubSection] 3). (52) The
state program shall provide that watershed councils develop local plans
that may assess the condition of a watershed, create a watershed action
plan, and develop a strategy for implementing it. Id. [SubSection] 6(1)
(amending 1993 Or. Laws 601, [SubSection] 2). (53) "The program
shall focus state resources on the achievement of sustainable watershed
health, including funding major projects that contribute to the overall
health of a watershed In addition, [GWEB] shall fund smaller, voluntary
projects for watershed enhancement and for restoration of riparian areas
and associated uplands." Id. (54) 1995 Or. Laws 187, [SubSection]
7(2). (55) The success of GWEB and the abolition of SWMG resulted from
the agricultural community's view of these councils. Agricultural
interests were comfortable with GWEB, which for years had simply funded
local watershed projects, but distrusted SWMG because it had held up
recognition of watershed councils that SWMG believed were too heavily
weighted toward local economic interests. Interview with Doug Myers,
Lobbyist for WaterWatch of Oregon, in Portland, Or. (Oct. 20, 1995).

(60) Id. [SUBSECTION] 3(1) representatives are from the following
Washington State agencies: Commissioner of Public Lands; Department of
Transportation; Department of Agriculture; Department of Ecology;
Department of Fish and Wildlife; Department of Health; Department of
Community, Trade and Economic Development; Interagency Committee for
Outdoor Recreation; Puget Sound Water Quality Authority; and
Conservation Commission. Id.

(61) Id. [SUBSECTION] 3(1)-(3)

(62) The legislature asked for a report on data collection and
bureaucratic and funding matters. Id. [subsection] 4. The governor asked
for a somewhat more action-oriented report on how to proceed with
various aspects of watershed planning, implementation, and restoration
activities. Washington Governor's Exec. Order No. 94-04,
Coordinated Watershed Planning, Implementation, and Restoration for Fish
and Wildlife [SUBSECTION] IV

(Apr. 1, 1994) [hereinafter Exec. Order 94-04].

(63) See Exec. Order No. 94-04, supra note 62, at 1.

(64) Montana, however, does have a renewable resource grant and loan
program that, after 1993 statutory changes, has been used to fund
watershed restoration projects and planning studies. Telephone Interview
with Jean Doney, Montana Department of Natural Resources and
Conservation

(78) Interview with Jan Brown, supra note 73. Under the state's
water planning laws, see infra part III.D.2.a, the Idaho Legislature
approved the Comprehensive State Water Plan for the Henry's Fork
Basin in 1993. See Idaho Code [subsection] 42-1734A (1990 & Supp.
1995).

(89) Telephone Interview with Bruce Farling, supra note 87. The
Steering Committee had 21 original members: nine represented irrigators,
two represented environmental groups, three were locally elected
officials, two represented electric utilities, one represented industry,
three represented state agencies, one represented a municipality, and
one represented the U.S. Environmental Protection Agency. Gerald
Mueller, a contractor to the Northern Lights Research and Education
Institute, facilitated the Steering Committee. Upper Clark Fork Plan,
supra note 81, at 10-11.

(a flyer distributed at a presentation to the Umatilla Basin
Watershed Council) [hereinafter Wallowa County Flyer]; see also Treaty
between the United states and the Walla Walla, Cayuses, and Umatilla
Tribes and Bonds of Indians in Washington and Oregon Territories, June
9, 1855, 12 Stat. 945

(98) Wallowa County Commissioner Ben Boswell, Presentation to the
Umatilla Basin Watershed Council (Mar. 28, 1995) [hereinafter Boswell
Presentation]. Boswell did not state how many "extremists"
were excluded or how they were so identified. He did not mention any of
these "extremists" by name, but he clearly indicated that one
of them was Andy Kerr, Wallowa County resident and Executive Director of
the Oregon Natural Resources Council. (99) Wallowa County Flyer, supra
note 96, at 1. (100) Wallowa County Plan, supra note 97.

(quoting Rick George of the Umatilla Tribes' natural resources
staff).

(125) Umatilla Tribes Salmon Policy, supra note 116, at 1-16.

(126) Id. at 45, 10-11.

(127) See supra part II.A.4.c.

(128) See infra part III.D.2.d.

(129) The Columbia River Inter-Tribal Fish Commission (CRITFC)
represents the Nez Perce, Umatilla, Warm Springs, and Yakama Tribes,
while the Columbia Basin Fish and Wildlife Authority is a collective
entity representing all the federal, tribal, and state fish and wildlife
agencies working in the four major Columbia Basin states. The four
Columbia River tribes published their own anadromous fish plan in 1995,
taking a holistic approach to recovery of salmon, Pacific lamprey, and
white sturgeon. Columbia River Inter-Tribal Fish Commission
Wy-Kan-Ush-Mi Wa-Kish-Wit (Spirit Of The Salmon) (1995). (130) See,
e.g., Scott Sonner, New Rules Proposed to Manage U.S. Forests, The
Oregonian Apr. 15, 1995, at A12 (discussing criticism by
environmentalists and industry regarding the Clinton
Administration's proposal for forest management).

(134) Wallowa County, for one, clearly wants control over all the
resources inside its borders. Voters there passed a referendum in 1994
purporting to seize control over federal lands within the county. See
Bill Crampton, Sagebrush Revolt Carries Worthy Message, East Oregonian,
Apr. 4, 1995 at 6A.

(135) A flyer on the Wallowa County/Nez Perce Tribe Salmon
Enhancement Plan notes: Fish runs [of Snake River salmon, which would
soon be listed under the Endangered Species Act] had dropped to 10 to 15
percent of historic numbers. This situation caused concern to the
citizens of Wallowa County because of their desire to have viable fish
runs return to the county and their realization that natural resource
extraction activities on public land might be curtailed, causing a
negative impact on the socio-economic health of the community. Wallowa
County Flyer, supra note 96, at 1.

(136) Telephone Interview with Mary Lou Soscia, supra note 56.

(137) The makeup of local watershed councils was formerly subject to
scrutiny by SWMG, a panel of ranking state officials. SWMG challenged
the membership balance of some councils, which may have been a major
factor in SWMG's legislative demise. See supra part II.A.3. A 1995
law essentially ratified all the existing council is regardless of their
membership. See Or. Rev. Stat. [sections] 541.366(2)(b)(A) (1996). (138)
Umatilla County Names Watershed Council Members, East Oregonian, May 16,
1994, at 3.

(139) Id. The Council was initially defensive about its makeup. See
Letter from Umatilla County Board of Commissioners to Strategic Water
Management Group (June 23, 1994) (on file with author). Recently,
however, the Council has added new membership and ceased to require its
members to represent particular interests, creaking a somewhat more
balanced panel. Minutes of the Umatilla Basin Watershed Council (Mar.
28, 1996) (on file with author). (140) Meet the Board-Bill Howell,
Grande Ronde Watershed Report (Grande Ronde Model Watershed Program,
LaGrande Or.) Fall/Winter 1993, at 4 (quoting Bill Howell). (141) The
Committee's members included three who represented grazing
interests, two who represented "small woodlands," and one who
represented the logging industry. However, both "labor" and
"large landowners" had two representatives each, all of whom
worked for Boise Cascade. And the representative of the Wallowa County
Court was a long-time rancher and logger. The committee also had two
representatives from the Oregon Department of Fish and Wildlife and one
each from the U.S. Bureau of Land Management, the U.S. Forest Service,
the Nez Perce Tribe, and business and environmental interests. Wallowa
County Plan, supra note 97, at app. A.

(142) Key recommendations include the need to "maintain
appropriate average density of trees," "encourage land
managers to retain riparian fuel loads at not more than 35 tons/acre
average," "encourage land managers to maintain upland fuel
loads at an average of 25 tons/ acre or less," and "encourage
land managers to harvest salvage as rapidly as possible while meeting
environmental concerns." Id. at 89-90. (143) Id. at app. E

(147) The Department of the Interior has pursued this approach in an
attempt to resolve heated conflicts over management of federal grazing
lands. See, e.g., Jill Lawrence, Babbitt Struggles to Reassure Western
Officials, East Oregonian, May 21, 1994, at 2. (148) At least two Oregon
watershed councils excluded potential members in the name of consensus.
Applicants seeking positrons on the Umatilla Basin Watershed Council had
to promise to work by consensus. Umatilla County Bd. of Commissioners,
Watershed Council Application (Mar. 21, 1994) (on file with author). And
local "extremists" were excluded from participating in the
Wallowa County/Nez Perce Tribe Salmon Habitat Enhancement Plan. Boswell
Presentation, supra note 98. (149) Wallowa County Plan, supra note 97,
at 102.

(150) In a recent article, Russ Lehman, former counsel to the
legislative Joint Select Committee on Water Resource Policy and a former
water policy advisor to Washington Governor Mike Lowry, strongly argued
that an obsession with consensus is crippling water management in
Washington. As Lehman sees it, a major problem with consensus-based
groups is that their members are all too willing to push their own
special interests in other venues, thus undercutting the group and its
search for consensus. Russ Lehman, Abdicating Responsibility for the
Holy Grail of Consensus, 11 Illahee 18, 19-20 (1995). Perhaps even
worse, he says,

is the arbitrary, politically motivated design of the
"table" in the first

place: the groups chosen to participate often do not accurately or
equitably

represent the public. In addition, these groups typically define
consensus in

terms of unanimity--a convenient definition, whether stated or not,
when the

primary reason behind the process is political cover. Thus it is
not only

feasible but all too common for a small group that does not want
change to, at

best, reduce a proposal to a nice-sounding but utterly worthless
document or,

at worst, completely obstruct the process. This behavior makes
filibusters in

the U.S. Senate look positively democratic.

Id. at 20-21.

(151) NMFS noted that the South Fork Salmon River Basin Plan and its
implementing actions represent "the only documented instance of
restoring degraded habitat in the Snake River Basin. Proposed Recovery
Plan, supra note 2, at V-1 49.

(152) Charles Wilkinson, eminent scholar and critic of Western water
law, explained the prior appropriation doctrine and itS place in the
proverbial trig picture in Charles F. Wilkinson The Eagle Bird 43-61
(1992); see also Sarah F. Bates et. al., Searching Out the Headwaters
(1993) (discussing the context and history of Western water issues).

(153) See Joseph L. Sax et al., supra note 6, at 137, 164-69.

(154) Id.

(155) "'Within the Snake River system, the major
consumptive use of water is for agricultural irrigation.' Water use
may divert entire streams during low flow periods, thereby eliminating
habitat." Proposed Recovery Plan, supra note 2, at V-1-5 (citation
omitted) (quoting unidentified 1991 National Marine Fisheries Service
document). (156) Solley et al., supra note 7, at 12.

(159) Attachment to Letter from Antone Minthorn, Water Committee
Chairman, Confederated Tribes of the Umatilla Indian Reservation, to
Walt Fite, U.S. Bureau of Reclamation (July 29, 1994) (on file with
author).

(160) Center for the Study of the Env't, Status and Future of
Salmon of Western Oregon and Northern California: Findings and
Options/Executive Summary at fig. 5A (Dec. 1994) (draft).

(161) Id. at 14.

(162) The Rogue River study found

[i]f low flow is a causal factor, then activities affecting low
flow would be

important in the abundance of chinook. In addition to the obvious
factor of

drought, low flow on the Rogue River is strongly influenced by
direct human

factors that include dams and potential water removal for
agricultural and

urban uses . . . .

. . . .

A plausible, but not definitive, argument can be made that the
past 20

years' variation in chinook abundance on the Rogue and the
Umpqua Rivers has

not been strongly affected by variation in forest cover within the
watershed;

variation in chinook abundance may be directly affected by dams and
removal of

water for irrigation.

Center for the Study of the Env't, Status and Future of Salmon
of Western Oregon and Northern California: Findings and Options 72-73
(Dec. 1994) (draft). ((163) Phil Cogswell, Salmon Houndering in Low Data
Level, Oregonian, July 5, 1994, at B6 (quoting Daniel Botkin).
Botkin's statement was based on an earlier draft of the December
1994 study.

Inadequate instream flows are killing salmon by the millions,
throughout the

Columbia Basin tributaries and in the mainstream of the Snake and
Columbia

Rivers. Hydropower management changes the quality, timing and
quantity of

river flow. Irrigation permanently removes large quantities of
water from the

rivers.

The water itself is sick. Grazing, timber, mining, agricultural
and

recreational practices in the tributaries are drastically changing
and damaging the health of our rivers.

. . . .

From time immemorial, water has been the giver of all life. We
must honor and

protect it, from the tributaries to the ocean.

Umatilla Tribes' Salmon Policy, supra note 116, at 3-4.

(169) Fish & Wildlife Program, supra note 1, at 7-1.

(170) Id. at 7-47 to 7-8.

(171) Id. at 1-15.

(172) The most significant limitation on the Fish and Wildlife
Program, however, is that state and federal agencies are not bound to
follow it, but only take it into account "at each relevant stage of
decisionmaking processes to the fullest extent practicable." 16
U.S.C. [sections] 839b(h)(11)(A)(u)

(176) Federal Water Pollution Control Act (Clean Water Act), 33
U.S.C. [sections] 1251(g) (1994) (noting that the "authority of
each State to allocate quantities of water within its jurisdiction shall
not be superseded").

(177) Reclamation and Irrigation of Lands by Federal Government Act,
43 U.S.C. [sections] 383 (1988) (noting that nothing in the Act shall be
construed to affect any state law "relating to the control,
appropriation, use, or distribution of water used in irrigation, or any
vested right acquired thereunder"). (178) Streamflow restoration
and protection may be achieved through various legal means, including
water law reform, improved enforcement, and the application of federal
environmental laws. Though none of these approaches has been tried and
proven on any large scale, they all hold some promise for improving
streamflows. See generally Reed D. Benson, Water Rights Deals, Water Law
Reform: Restoring Water to Northwest Rivers, 11 Illahee 12 (1995). (179)
For a critical examination of Idaho irrigators' attitudes toward
changing their water use practices to benefit streamflows, see Tim
Palmer, The Snake River 83-139 (1991). (180) Laws passed in Idaho and
Oregon allow irrigators to legitimize past illegal water transfers, so
long as the changes do not cause harm to other water right holders. In
Idaho's massive Snake River Basin Adjudication, statutes allow
retroactive approval of certain unauthorized changes that have already
occurred. Idaho Code Ann. [subsections] 42-1425 to 42-1426 (1990 Supp.
V. 1995). Oregon allows irrigation districts to seek
"remapping," so a district's water right will reflect its
actual-rather than legally authorized--use of water. Or. Rev. Stat.
[sections] 541.329 (1995); see also id. [subsections] 541.325-541.333.
The 1995 Oregon Legislature continued this trend of protecting water
uses whose existing practices were legally questionable. See, e.g., 1995
Oregon Laws 218. (181) See supra part II.B.2-3.

(182) Some watershed management efforts rely heavily, though not
exclusively, on such measures as a means to provide instream flows. See,
e.g., Grande Ronde Watershed Program, supra note 105, at 18. "Flows
could be increased through changes in vegetative management, changes in
irrigation practices, reestablishment of healthy wetlands, a variety of
impoundments, etc." Id. This short list is interesting, both for
the items it includes and for those it does not. "Changes in
irrigation practices" could include a variety of measures, perhaps
even drying up cropland. But the list does not mention even such obvious
actions as purchasing or leasing water rights for instream use,
improving water law enforcement, or implementing water conservation
measures. Instead, it suggests building impoundments and changing land
use practices, starting with "vegetative management." which
could easily be read as "cutting trees." see supra notes
137-39 and accompanying text.

(183) For an explanation of why streamflow protection measures under
state law are often inadequate to provide sufficient flows, see infra
part III.D.1

(187) Id. The model watershed project encompasses the Lemhi Basin
along with the nearby Pahsimeroi and East Fork of the Salmon River
Basins. The State of Idaho selected this basin, and the Idaho Soil
Conservation Commission is the lead agency. Id.

(188) The Committee's vision is "[t]o provide a basis of
coordination and cooperation 'between local, private, state, tribal
and federal fish and land managers, land users, land owners and other
affected entities to manage the biological', social and economic
resources to protect, restore and enhance anadromous and resident fish
habitat." Id.

(190) Many of these steps relate to improving and consolidating
irrigation diversion structures to reduce fish passage and water
management problems. See Coordinator Comments, Model Watershed News
(Lemhi, Pahsimeroi, and East Fork of the Salmon River Model Watershed
Project, Salmon, Idaho), Winter 1995, at 3.

(193) It is possible, however, that Idaho's "water
bank" may provide a means of making privately held water available
for instream flows. See James D. Crammond, Leasing Water Rights for
Instream [low Uses: A Survey of Water Transfer Policy, Practices, and
Problems in the Pacific Northwest, 26 Envtl. L. 225, 233 (1996).

(195) Telephone Interview with Patty Perry, supra note 105. Perry
stated that, in more than two years of working for the program, she
could not recall such a closely divided vote on any project. Id.
Although that specific project was not brought back to the board, a
similar project involving Oregon Water Trust, the Bureau of Reclamation,
and a private landowner was approved by the board in January 1996.

(197) Mont. Code Ann. [sections] 85-2-316(1) (1995) (allowing
"[t]he state or any political subdivision or agency of the state or
the United States or any agency of the United States" to apply to
reserve instream flows). The six identified basins are the Clark Fork,
Kootenai, St. Mary, Little Missouri, Missouri, and Yellowstone. Id.
[sections] 85-2-316(2).

(198) Or. Rev. Stat. [sections] 537.336 (1995) (allowing the State
Department of Fish and Wildlife, Department of Environmental Quality,
and State Parks and Recreation Department to request instream water
rights).

(199) Wash. Rev. Code [subsections] 90.03.247, 90.22.010 (1994).

(200) For considerably more history and greater detail on the
instream flow laws and programs of Idaho, Montana, Oregon, and
Washington, see Instream Flow Protections in the West (Lawrence J.
MacDonnell & Teresa A. Rice eds., rev. ed. 1993).

(201) See, e.g., Water Resources Div., Dep't of Natural
Resources & Conservation, Montana Water Plan: Management Section,
Subsection: Instream Flow Protection 3 (Feb. 1989) [hereinafter Montana
Water Plan: Instream Flow]. Instream resources are often threatened in
streams that are subject to regular or periodic low flow conditions. The
issue here is not how to maintain existing flow levels, but how to
increase or enhance the flow levels in certain streams." Id.

(202) While Idaho law does not allow water rights to be directly
converted to instream use, it may authorize instream rentals from the
state's "water bank." See Crammond, supra note 193, at
233.

(205) See Wash. Rev. Code [subsections] 90.38.040, 90.42.010-.090
(1994). The trust water rights program authorizes the Washington
Department of Ecology to acquire water for public benefits through
buying or leasing water rights, or through financing water conservation
projects and receiving a portion of the water saved. A letter from the
Washington Department of Ecology explained that

[t]he state has two trust water rights statutes. The Yakima river
base 's

1989 statute is specific to that area. The second law, passed in
1991, calls

for the trust water rights program to be implemented in the
regional pilot

planning areas of the Dungeness-Quilcene and the Methow river
basin, as well

as in a limited number of other Water Resource Inventory Areas
(WRIAs).

(208) Id. The statute was amended in 1993 to provide that the public
share of conserved water must match the public portion of funding for
the conservation measures, provided that both the public and the water
user get at least 25%. Id. [sections] 537.470(3). The 1995 Oregon
Legislature passed a bill that would grant the public an amount agreed
upon by the water user and the public funding source. H.R. 2471, 68th
Leg., 1995 Or. Laws. However, Governor John Kitzhaber vetoed the bill.

(209) See Wash. Rev. Code [sections] 90.42.040(1) (1994). Just water
rights acquired by the state shall be held or authorized for use by the
department for instream flows, irrigation, municipal, or other
beneficial uses . . . ." Id. Yakima Basin trust water rights must
be used either for instream flows or irrigation. Id. [sections]
90.38.040(3).

(212) In Washington, however, water resource planning is currently
proceeding under the terms of the Chelan Agreement of March 8, 1991,
which is considerably more detailed and prescriptive than the statutes
of the four Northwest states. For more on the Chelan Agreement, see
infra part III.D.2.d.

(217) Idaho's statute calls for "conservation, development,
management and optimum use of all unappropriated water resources and
waterways of this state in the public interest." Idaho Code
[sections] 42-1734A(1) (1990). The Montana law requires the state water
plan to "set out a progressive program for the conservation,
development, and utilization of the state's water resources and
propose the most effective means by which these water resources may be
applied for the benefit of the people." Mont. Code Ann. [sections]
85-1-203(2) (1995). And Oregon's planning law states that it is in
the public interest that augmentation of existing supplies for all
beneficial purposes be achieved for the maximum economic development
thereof for the benefit of the state as a whole." Or. Rev. Stat.
[sections] 536.310(2) (1995).

(223) In the Henry's Fork Basin, the Board formed a local
advisory group to assist in planning. The Henry's Fork Advisory
Group waS comprised of 13 members, who were either commissioners of one
of the three affected counties, or private citizens representing a
particular interest. Henry's Fork Plan, supra note 69, at 15.

(234) Id. at 131, 13542. The plan's first recommended action is
to "[e]ncourage water resource-related economic development funding
for private, city, county, state and federal projects." Id. at 178.

(235) "The state water plan may be formulated and adopted in
sections, these sections corresponding with hydrologic divisions of the
state." Mont. Code Ann. [sections] 85-1-203(2) (1995).

(236) The Management Section was adopted in February 1989, comprising
four subsections dealing with the Montana Water Information System,
Agricultural Water Use Efficiency, Federal Hydropower Licensing and
State Water Rights, and Instream Flow Protection. Two additional
sections on Drought Management and Water Storage were adopted in
December 1990. In November 1992, the Integrated Water Quality and
Quantity Management section was adopted. These Sections comprise the
Montana Water Plan. Water Resources Div., Dep't of Natural
Resources & Conservation, Montana Water Plan (1989-92).

(242) Specifically, the recommendations addressed closure of the
basin to new water rights; basin-wide and sub-basin management
committees; protection of existing water rights; Forest Service reserved
rights claims; structural and nonstructural water storage; water
quality, including toxic metals, nutrient and nonpoint pollution;
fishery restoration through streamflow and other habitat improvements; a
pilot program to lease water rights for instream flows; and a continuing
hold on agricultural and instream reservation requests. Id. at 4-7,
5063. Several elements of the Upper Clark Fork Plan were approved by the
1995 Legislature, although some were eliminated or altered. 1995 Mont.
Laws. 487. The plan has also been approved by the Montana Department of
Natural Resources and Conservation. Telephone Interview with Mary
Vandenbosch, supra note 240 (May 1995).

(243) Upper Clark Fork Plan, supra note 81, at 30, 58.

(244) Id. at 30, 58, 70-72. Montana law requires the state to prepare
a list of "chronically dewatered watercourses" using a
specified set of criteria Mont. Code Ann. [sections] 85-2-150(1) (1995).

(245) Upper Clark Fork Plan, supra note 81, at 59-63.

(246) The plan also recommends that a pending request for an instream
flow reservation, along with a competing reservation request for
irrigation and storage, continue to be held in abeyance with their
priority dates intact. Id. at 5743.

(247) Oregon law provides that existing rights are to be protected
"subject to the principle that all of the waters within this state
belong to the Public for use by the people for beneficial purposes
without waste. Or. Rev. Stat. [sections] 536.310(1) (1995). 248 Id.
[sections] 536.310(7)

(257) Water Resource Commission Findings, supra note 250, at 1-2. It
also finds that restricting new water uses may protect flows in some
areas, but "[w]here streams are seasonally overappropriated, the
establishment of restrictive actions would have no major practical
effect until additional flows became available from return flows of
major upstream developments, storage, or the implementation of other
measures." Id. at 3. (258) Id. at 5-6.

(262) Chelan Agreement, supra note 174, at 1. The Chelan Agreement
was never signed by anyone or adopted by the State of Washington.
Telephone Interview with Lloyd Moody, Executive Fellow, Office of the
Governor (Apr. 26, 1995).

(265) "The planning region will be one or more Water Resource
Inventory Areas

(WRIAs), unless there is a specific need for a smaller area within a
WRIA which is a specific hydrologic area" Chelan Agreement, supra
note 174, at 7. Ecology has established 62 WRIAs in Washington,
corresponding to watersheds in the state. Wash. Admin. Code [sections]
173-500-040 (1995).

(266) Chelan Agreement, supra note 174, at 3.

(267) Id. at 6.

(268) Id.

(269) Id.

(270) Id. at 6-7.

(271) Id. at 12.

(272) The agreement specifies a number of items to be considered
under each of these five main headings. "Water quality" and
"conservation" are issues to be considered under both the
ground water and surface water headings. Instream flows are to be
considered under both surface water and nonconsumptive needs. Id. at
10-11. (273) Id. at 12.

(274) Id. at 13.

(275) Id. at 5. The Department was to select the pilot projects in
cooperation with the Water Resources Forum, also established by the
Chelan Agreement. The Forum is a consensus based policy advisory group
with representation from the eight "caucuses" listed above.
Id. at 3-4. (276) The 1991 Washington planning statute provided for
planning on a pilot basis in two regions to be selected by Ecology.
"One region shall encompass an area within the Puget Sound basin in
which critical water resource issues exist. A concurrent pilot process
may encompass a region east of the Cascade Mountains." Wash. Rev.
Code [sections] 90.54.045(2) (1994). (277) Methow Valley Water Planning
Pilot Project, Draft Methow Basin Plan (Jan. 27, 1994) [hereinafter
Methow Plan (on file with author); Jamestown S'Klallam Tribe,
Dungeness-Quilcene Water Resource Pilot Planning Project,
Dungeness-Quilcene Water Resources Management Plan (June 30, 1994)
[hereinafter Dungeness-Quilcene Plan] (on file with author). (278) The
nature and timing of these rulemakings are not finally determined. It is
likely, however, that the Dungeness-Quilcene plan will be adopted
through a negotiated rulemaking involving the regional planning group.
The Methow Plan will be the basis for an amendment to Washington
Administrative Code [sections] 173-548, the current water resources
program for the Methow River Basin. Telephone Interviews with Doug
Rushton, Washington Department of Ecology (Apr. 28, 1995; May 9, 1995);
Telephone Interview with Lloyd Moody, supra note 262.

(282) Doug Rushton of the Washington Department of Ecology, who was
heavily involved in the development of the Dungeness-Quilcene Plan, gave
two primary reasons for the remarkable shared-sacrifice agreement.
First, local tribes and irrigators in the area had historically
cooperated, operating informally on a shared-sacrifice basis for several
years. Second, strong individuals represented both irrigators and tribes
on the Regional Planning Group. Rushton had particularly high praise for
the vision and leadership of Roger Schmidt of the irrigation caucus and
Ann Seiter of the tribal government caucus. Telephone Interviews with
Doug Rushton, supra note 278.

(283) Methow Plan, supra note 277. at vii.

(284) Id. at vii.

(285) Id. at vii-ix; Telephone Interview with Dale Bambrick, Yakama
Indian Nahon Fisheries Staff, Member of the Methow Planning Group (Apr.
27, 1995).

(286) Such is not the case in every basin. The Dungeness-Quilcene
regional planning effort, for example, was based on years of cooperation
between irrigators and Native Americans. See supra note 281 and
accompanying text.

(290) The Strategic Water Management Group (SWMG) Policy Work Group
comprised state and federal officials, agricultural representatives,
environmentalists, cities and counties, and other water users. This
group produced the SWMG Work Group Proposal, supra note 43. (291) For an
explanation of the Watershed Health Program, SWMG, and the 1993
legislation, see supra part II.A.3.

(296) Id. at 299-300. Within this comprehensive ecosystem framework,
Duncan proposed that "[i]ndividual subbasins--the Grande Ronde, the
Lemhi--should be free to fashion watershed programs to meet their
circumstances, consistent with regional standards that ensure basin-wide
watershed health." Id. at 299.

(297) Hatfield stated that his purpose was "not to endorse this
approach as the best and final word on the subject, but to encourage
broad regional debate on the need for such new approaches to managing
our Basin, and to solicit constructive commentary and alternative
solutions." Letter from Senator Mark O. Hatfield to My Fellow
Northwesterners (June 2, 1994) (on file with author).

(298) See supra part II.A.3.

(299) Telephone Interview with Lloyd Moody, supra note 262.

(300) This fact is best illustrated by the recently enacted
amendments to Oregon's watershed programs, in which some form of
the word "voluntary" appears eight times,
"cooperate" six times, "partnership" four times, and
"local" twenty-eight times. See 1993 Or. Laws 601 (H.R. 2215)
and 1995 Or. Laws 187 (H.R. 3441) (both codified as amended in scattered
sections of Or. Rev. Stat. ch. 541 (1995)). House Bill 2215 also
provides: "State agencies responding to local watershed protection
and enhancement efforts are encouraged to foster local watershed
planning, protection and enhancement efforts before initiating
respective action within a watershed." 1993 Or. Laws 601,
[sections] 1(2)(c). (301) Russ Lehman has sharply criticized water
officials in Washington for failing to enforce and uphold the laws, thus
allowing continued paralysis in water management. "At every level
of government, an almost total reliance on consensus-based processes has
taken the place of decision and policy making." Lehman doesn't
say whether this over-reliance on consensus is more a cause or effect of
the paralysis, but it appears to be both. Lehman, supra note 150, at 19.
(302) After Republican gains in 1994, Washington business and
agricultural interests lost whatever enthusiasm they had for the Water
Resources Forum, a multi-interest, consensus-based state water policy
group formed under the Chelan Agreement. Telephone Interview with Lloyd
Moody, supra note 262. Russ Lehman describes the political reality as
"grotesque":

Those groups that have historically fought to keep the status
quo--those

whom antiquated laws and policies have served very well--will be
the first to

argue for consensus approaches when political power is held by
those they

consider a threat to business as usual. When political tides
change, however,

those recent converts to consensus revert to their old
ways--aggressively

pursuing and advocating an agenda of resource exploitation.

Lehman, supra note 150, at 20.

(303) See Steve Meyers, Water Spreading Pact Breaks Down, East
Oregonian, July 7, 1994, at A1; Jon Christensen, No Final Solutions for
Farmers, High Country News, Apr. 3, 1995, at 23-24.

Reed D. Benson, Reclamation Issues Director for WaterWatch of Oregon
(Portland). B.S. 1985, Iowa State; J.D. 1988, University of Michigan.
The author has worked as a lawyer in private practice, for the U.S.
Environmental Protection Agency, and for the nonprofit Land and Water
Fund of the Rockies in Boulder, Colorado. He has broad experience in
western water law and has worked extensively for conservation groups on
Northwest water issues. This Article was originally presented on May 20,
1996 at the Conference on Water Policy and Sustainability in the
Columbia River Basin, sponsored by the Northwest Water Law & Policy
Project of Northwestern School of Law of Lewis & Clark College.

COPYRIGHT 1996 Lewis & Clark Northwestern School of Law
No portion of this article can be reproduced without the express written permission from the copyright holder.